41 Iowa 650 | Iowa | 1875
The facts of this case are agreed upon by the parties, and are as follows:
“ 1. That on the 24th day of August, 1864, one George McGuire died, leaving the following will:
“Know all men by these presents: That I, George McGuire, of the city of Des Moines, in the county of Polk, state of Iowa, being in the possession of all my senses, with a view of the uncertainty of human life, do make this last will and testament:
Fi/rst. I will and order that all of my just debts and expenses of my burial be paid out of my estate.
Second. I bequeath to my beloved wife, Triphena McGuire, absolutely, my homestead, in the city of Des Moines, where I now reside.
Third. I bequeath to my said wife all of my other real property, except that which is hereinafter disposed of otherwise, during the period of her widowhood, and, in the event of her marriage, the same is to take the course designated by 'existing laws.
Fov/rth. I bequeath to my said wife all of my personal property, of every description, except such as'is hereinafter otherwise disposed of.
Fifth. I bequeath to my beloved niece, Edith McGuire, the sum of one hundred dollars.
Sixth. 1 bequeath to the Masonic Fraternity the sum of one hundred dollars, to be divided equally between the Knight
And I hereby appoint John Mitchell, of Polk county, executor of my last will and testament. {Duly witnessed cmd signed.)
2. That said McGuire died without issue, leaving a widow, Triphena McGuire, since intermarried with the defendant, G. B. Brown.
3. That said George McGuire was the son of John and Sarah McGuire, both of whom were dead at his decease.
4. That said George left surviving him the plaintiff, his brother, John McGuire, another brother, and one Martha L. Gibbins, an illegitimate daughter of his deceased sister Sarah McGuire.
5. That prior to the commencement of this action, the said John McGuire had conveyed all of his interest in the property in question to the defendant, Triphena Brown.
6. That prior to the commencement of this action, the said Martha L. Gibbins had conveyed to plaintiff whatever interest she had in said real estate.
7. That said John McGuire, Sarah McGuire and plaintiff were the children of said John and Sarah McGuire, all other children of said parents being dead at the decease of said parents without leaving children, and the said Sarah McGuire also died before either of her parents, leaving no child except the said illegitimate child. That the executor named in the will failed to qualify, and that thereupon, and on the 13th day of December, 1864, the defendant, Triphena Brown, then McGuire, was appointed executrix of said estate, and duly qualified and proceeded to execute said will, and administer upon said estate, said will having been on the 3d day of October, 1864, duly probated and allowed in the county court of Polk county, Iowa.
9. That the defendant, Triphena Brown, accepted the devise under said will made to her.
10. That the homestead devised to her is not any part of the property in question.
12. That prior to his death, the said George McGuire being indebted to one Hemmingway, executed -with his wife, the said Triphena, a mortgage upon the said real estate to secure said' indebtedness. That at his death a portion of said indebtedness was unpaid, and that subsequently the said Triphena paid off said indebtedness. The mortgage was for the unpaid portion of the purchase money of said land. That a note, executed on the 10th day of February, A. D., 1863, payable two years after date, secured by said mortgage, was purchased by the said Triphena Brown, at its maturity, as hereinafter shown, and the said Triphena paid in satisfaction of the expenses of the last sickness and funeral of the said George McGuire, the sum of two hundred and seventy-eight and 90-100 dollars.
And paid on the indebtedness proved up against said estate the sum of $632 62-100, on the-day of-, A. D., 1865.
The mortgage to Savery is paid off. ■
That October 7, 1865, the said Triphena McGuire, n'ow Brown, made her final report as executrix of the estate of George McGuire, deceased, in which she recited the payment of $1,100 to one Hemmingway, being the amount of the note above mentioned, as a part of the unpaid purchase money on said real estate. And, to prove said report, exhibited as a voucher' the receipt of said Hemmingway, dated February 4, 1865, as follows:
$1,100.00. Received, February 4, 1865, eleven' hundred dollars, in full of my claim against the estate of George McGuire, of Triphena McGuire, executrix of said estate.
H. N. Hemmingway.
And on said February 4,1865, said Hemmingway acknowledged the satisfaction of said mortgage on the margin of the records thereof.
It is admitted that Triphena Brown,' being sworn, would say that when she took up the note, secured by mortgage on said premises, she was told by Hemmingway, who held it, that
1. The third clause of George McGuire’s will reads as follows : “ I bequeath to my said wife all of my other real property, except that which is hereinafter disposed of otherwise, during the period of her widowhood, and, in the event of her marriage, the same is to take the course designated by existing laws.” The land in controversy is the same that was covered by this bequest. It is 'agreed by counsel for both j>arties that, upon the marriage of the widow, this bequest terminated, and that the lands embraced therein were to be disposed of according to the law in relation to the descent of real property. It is unnecessary to discuss or determine the question, whether in such case the persons entitled to the land took by descent or by purchase, under the will; for the terms' of the will direct that the land shall take the course désignated by the law.
It is insisted by the plaintiff thát, upon the marriage of the widow of the testator, the land then descended to his heirs, and that she was not. to be considered as an heir, and, therefore, not entitled to any share in the lands thus descending..
It is argued that since she accepted the bequest contained in the will, giving her a life estate in the lands, she was not entitled to dower therein, and since she determined her life estate by her own act, her entire interest in the lands was then gone.
This, it seems to us, was the manifest intention of the testator, deducible from the language used. In the event of the marriage of the widow, the land was to “ take the course designated by existing laws.” Now, as the law does not provide for any such particular emergency, but does make provision for the descent and distribution of real property not disposed of by will, it is clear that the testator intended that this property, in the event of his widow’s marriage, should be distributed according to the laws establishing the rules of descent of the real property of an intestate. These being the only laws on the statute book in reference to the course of descent of lands of a decedent not disposed of by will, these only were intended by the testator. And since there is nothing in the will .showing an intention to exclude the widow, upon her marriage, from taking, as an heir, a portion of the laud then to be disposed of according to law, she would be entitled to the same portion or share of the land in controversy as she would have been if it had not been mentioned at all in the will, or no will had been made.
The provisions of the statute applicable to the question before us (Revision of 1860), are as follows:
“ § 2436. Subject to the rights and charges hereinbefore contemplated, the remaining estate of which the decedent died seized shall, in the absence of other arrangements by will, descend in equal shares to his children.
§ 2437. If any one of his children be dead, the heirs of such child shall inherit his share in accordance with the rules prescribed, in the same manner as though such child had outlived his. parent.
§ 2495. If the intestate leave no issue, the one-half of his estate shall go to his parents, and the other half to his wife; if he leave no wife, the portion which should have gone to her shall go to his parents.
§ 2496. If one of his parents be dead, the portion which would have gone to such deceased parent shall go to the sur
§ 2497. If both parents be dead, the portion which would have fallen to their share, or to either of them by the above rules, shall be disposed of in the same manner as if they or either of them had outlived the intestate and died in the possession and ownership of the property thus falling to their share, or to either of them, and so on through ascending ancestors and their issue.”
Now, under section 2497, the parents, for the ’purpose of the descent of the property, are to be considered as having
It is true that by the fourth clause of the will the wife is given all of the personal property of every description, with exceptions mentioned, but the will also directs that all of the just debts and expenses of burial shall be paid out of the estate. The personal property and money belonging to the estate was largely in excess of the debts. No particular fund is named or created, by express language, for the payment of the debts, and they are not charged upon any particular bequest, but upon the whole estate, and since the statute makes the personal estate primarily liable for the payment of the debts, which the will directs to be paid from the estate, the conclusion forces itself upon us that it was the intention of the testator that the debts should be paid from the personal
The decree of the District Court will be reversed, and the cause remanded, with direction to render judgment in accordance with this opinion, and proceed thereon with the partition of the property in question.
Reversed.