285 N.W. 124 | Neb. | 1939
Ruth Lehman brought this action in the district court for Stanton county February 19, 1938, to enforce the payment of a bequest made to her by the provisions of the last will and testament of her mother, Maria Wagner, who departed this life October 28, 1933. The trial court decreed and adjudged that plaintiff had a specific bequest and was entitled to a first lien upon 80 acres of land in Stanton county, and that the executor, Arthur Wagner, as such had a second lien in the amount of $2,000. The court further allowed plaintiff interest from the date of the death of testatrix, which at this time amounts to more than $900* and ordered the land sold to pay plaintiff's bequest. The executor, Arthur Wagner, appeals as such and individually.
The issue in this case is solely between Ruth Lehman, plaintiff, and Arthur Wagner, as executor and individually.
The last will and testament of Maria Wagner was admitted to probate in the county court of Madison county, Nebraska, March 7, 1934, over objections, and an appeal was taken to the district court. The appeal was dismissed April 24, 1935, and the dismissal filed in the probate proceedings April 6, 1936. Arthur Wagner, a son and legatee under the will, was appointed special administrator May 9,
For a decision in this case, it is necessary that we arrive at the intent of the testatrix, as contained within the four corners of her last will and testament, in interpreting such will. We shall, therefore, set out the pertinent provisions of the will and make reference to other provisions as occasion requires.
The third paragraph of the will follows: “To my daughter, Ruth Lehman, I give and bequeath the sum of Three Thousand Dollars, the same to be paid to her by my son, Joseph Wagner, as hereinafter provided.” We next refer to paragraph 7 of the will in conjunction with paragraph 3. Paragraph 7 follows: “Having already given and deeded to my son, Joseph Wagner, certain land in Stanton county, Nebraska, I hereby give and devise to my said son Joseph Wagner the following described real estate (Then follows a description of the real estate and an easement thereon).
“The above devise of real estate to my said son, Joseph Wagner, is based upon, subject to and burdened with the express requirement and condition, that he make payment of the sum of Five Thousand Dollars, of which Three Thou
There are three general bequests in the will: First, $1,000 to Alice McFarland, a daughter, who had previously received $4,000; second, $5,000 to Arthur Wagner, who had previously received real estate in South Dakota; and, third, $5,000 to Otto, a son, of which $3,000 was to be paid by another son, Walter, who received real estate in Madison county with the charge thereon. The thirteenth paragraph of the will provides for the priority of the general legacies: First, payment of $1,000 to Mrs. McFarland; second, payment of $5,000 to Arthur Wagner; and, third, payment of $2,000 to Otto Wagner. Then follows a residuary clause, providing for division of the balance of the money in the hands of the executor, after the sale of the property, into seven equal parts. The plaintiff is not named as a general legatee in paragraph 13 of the will, but appears in the residuary clause. Certain other specific bequests in the way of machinery and live stock are made to Walter.
It is agreed among the parties that the real estate in dispute will not be called upon to pay any of the claims against the estate. There is no residue, and the land involved is worth less than $5,000. Joseph Wagner refused to take the land under the will, subject to the charge of the bequests against it.
Appellant assigns as error, first, the judgment is not sustained by the evidence and is contrary thereto; second, the court erred in holding that plaintiff’s lien for $3,000 was entitled to priority over the executor’s lien for $2,000, and in awarding plaintiff interest on her bequest.
On his first proposition of law defendant states: “Charges upon real estate are created by the terms of a will which devises property conditioned upon payment of a second specific legacy, and upon payment of a certain sum of money to the executor,” citing in support thereof 2 Page, Wills, 2132, sec. 1281, which in part reads: “If the devise of specific realty provides that it is subject to certain lega
In 69 C. J. 1205, it is said: “The refusal of the devisee to accept the devise will not affect the charge of the legacy; in equity the land is charged whether or not the devisee accepts the devise.”
Defendant contends: “Where a parcel of real estate is devised subject to two charges, it is presumed that the testatrix intended these charges to be with equal priority, unless the will clearly reveals an intention to give one priority over the other.”
We now turn our attention to an interpretation of the will of Maria Wagner. The statute requires the court, in the construction of a will, to give effect to the true intent of the testator so far as it can be collected from the whole instrument, if such intent is consistent with the rules of law. Comp. St. 1929, sec. 76-109; Blochowitz v. Blochowitz, 130 Neb. 789, 266 N. W. 644. And, also, in this connection, circumstances relating to the will may be considered. In re Estate of Hunter, 132 Neb. 454, 272 N. W. 318.
In Lincoln Nat. Bank & Trust Co. v. Grainger, 129 Neb. 451, 262 N. W. 11, it was said: “Without much regard to canons of construction, the court will place itself in the position of the testator, ascei-tain his intent from the provisions of the will and enforce it, if lawful. Weller v. Noffsinger, 57 Neb. 455; Krause v. Krause, 113 Neb. 22; Elliott v. Quinn, 109 Neb. 5; Heywood v. Heywood, 92 Neb. 72.”
Rarely, if ever, are two wills couched in precisely the same language, and the conditions surrounding one testator may be so widely different from those surrounding another that the conclusion reached in one case is of little value as compared with that reached in another. See Straw v. Barnes, 250 Ill. 481, 95 N. E. 471.
We do not believe that it was the mother’s intention to favor the daughter, Ruth Lehman, to the exclusion of the son, Arthur Wagner. The testatrix believed that the estate was ample. If it is not, then, in the absence of an intention to the contrary, it is presumed that she intended each of several beneficiaries, standing in the same relation to her, to receive an equal interest with each of the others. 69 C. J. 280. The will of Maria Wagner does not express the intention that the charge in favor of the plaintiff shall have priority over the charge in favor of the executor. There is no ambiguity, and a contrary intention could not be proved by extraneous evidence. To give the plaintiff a priority in this case would amount to reading into the will a provision which is not now there.
We therefore hold that the liens chargeable against the 80 acres of land devised to Joseph Wagner are of equal priority. Therefore, of the amount received from the sale of the 80 acres, plaintiff shall receive three-fifths, and the remaining two-fifths is payable to the executor, to be applied by him, with other moneys of the estate in' his possession, to payment of costs of administration of, and remaining debts owing by, the estate; and, under the thirteenth paragraph of the will, which must be read in conjunction with paragraph 4 thereof, to the next legatee designated, in point of priority, who has not received his bequest, and who, in this instance, is defendant Arthur Wagner, who shall receive such amount remaining.
The defendant contends that the court erred in allowing interest on plaintiff’s specific bequest from the date of the death of testatrix. The will is silent as to the date of payment of the bequest and as to the interest, or rate thereof,
The exception cited by plaintiff is stated in 69 C. J. 1269 as follows: “Where the possession of the land devised and the payment of the legacy charged on it are both postponed until the determination of some intervening estate in the land, in which case interest runs from the date when the devisee has the right to enter into possession of the land or receive its profits.” In the instant case, there is no intervening estate.
We have analyzed several sections of the statute relating to the probate of wills and applicable to this case, and it would unnecessarily lengthen this opinion to set out all of such provisions. We here set forth some of the statutory provisions pertinent to the issue involved.
Section 30-303, Comp. St. 1929, in substance provides for the bond of the executor before receiving letters testamentary, conditioned that he make the return, within three months, of a true inventory of all the goods, chattels, rights, credits and estate which come into his possession or knowledge; pay all just charges, debts, legacies, etc., as may be ordered and decreed by the county court, and “render a true and just account of his administration to the probate court within one- year, and at any other time when required by such court; and to perform all orders and decrees of the county court by the executor to be performed in the premises.” (Italics ours.)
Section 30-603., Comp. St. 1929, designates the time allowed creditors for presentment of claims, which shall not, in the first instance, exceed 18 months or be less than three months, and section 30-604, Comp. St. 1929, provides for extension of time for allowance of claims.
Therefore, it is evident that the executor takes full and
All of the foregoing sections of the statute sufficiently emphasize the reason for the holdings in Nebraska, hereinafter set out, respecting the payment of interest on specific legacies when the will is silent on the subject.
This court, in Lewis v. Barkley, 91 Neb. 127, 135 N. W. 379, held: “Whether interest is to be allowed upon a specific legacy of money depends upon the intention of the testator. If that intention cannot be otherwise determined from the language of the will itself, it will be presumed that the testator intended that the legacy should be paid during the first year after the appointment of the executor under the will, and, if not so paid,, should bear interest from that time.”
In cases where the intention of the testator is doubtful, assistance may be derived from the provisions of the statute in regard to the settlement of estates which are heretofore briefly set out. The testator being aware of the statute in reference to estates, it has in most cases been regarded that there is a presumption that the testator intended the legacies should bear interest from that time. In many cases this has been regarded as determining the matter, when the intention of the testator cannot be otherwise determined from the will. See Smullin v. Wharton, 83 Neb. 328, 119 N. W. 773.
The question generally involved under our law is whether
The will was contested; the county court decided adversely to the contestants, and an appeal was taken by them to the district court, thereby necessitating the appointment of a special administrator in the county court, as provided by section 36-316, Comp. St. 1929, until the will is admitted to probate or disallowed, and a proper representative of the deceased appointed to handle the estate. Subsequently, the appeal was dismissed in the district court, and, during the period of the special administration, an action was brought by the widow of a deceased son in another county to set aside a deed which had been given by her in payment of a 7,000-dollar mortgage, running to the testatrix, and which involved undevised realty. She did not prevail. A transcript and bill of exceptions were ordered for the purpose of appealing to the supreme court, but the appeal was not perfected, and this undevised land was sold February 28, 1928, pursuant to a license from the district court for Madison county for payment of debts of the estate, within the contemplation of section 30-1401, Comp. St. 1929, netting the estate the sum of $2,408.
Following the rule as announced in Nebraska, the presumption that the testatrix intended that the legacy should.
We hold that the plaintiff is entitled to interest on the amount to be received by her in payment of her specific legacy, which is three-fifths of the amount realized from the sale of the 80 acres of land in Stanton county charged with the payment of the legacy, one year after the appointment of the executor, which would be November 2, 1938, at the legal rate as provided by law, and until such time as plaintiff may finally be paid.
The judgment of the district court is reversed, and the cause remanded with directions to enter a decree in conformity with this opinion.
Reversed.