157 Iowa 336 | Iowa | 1912
— William. Emslie died in 1893, the owner of the lands in controversy. He left surviving him his widow, Mary S. Emslie, and six brothers and sisters, but no issue. Of these brothers and sisters but two, George Emslie and Annie E. Clark, were residents of the United States. The others were aliens residing in England and Wales. Annie E. Clark and Mary E. Mitchell are the two surviving sisters of William Emslie; the other brothers and sisters having died before the commencement of these actions. The plaintiffs herein, other than Mary E. Mitchell and Annie E. Clark, are the heirs of these deceased brothers and sisters. William Emslie left a will as follows:
Eirst. I direct that all my just debts, including funeral expenses, be paid as soon after my decease as can be done without injury to my estate.
Second. I give, devise and bequeath unto my beloved wife, Mary S. Emslie, one-half of all my estate, both real and personal, absolutely and in fee simple. And I also give, bequeath and devise unto my said wife Mary S. Emslie, the use, rents and profits, control and enjoyment of the other one-half of all my estate both real and personal for and during her natural life.
Third. At the death of my said wife, Mary S. Ems-lie, I give what may be then remaining of one-half of my estate to my legal heirs.
Eourth. I hereby revoke all former wills by me at any time made.
Eifth. I hereby- nominate and appoint my beloved wife, Mary S. Emslie, sole executrix of this my will and request the court to confirm her appointment without bond.
This will was duly admitted to probate. The widow, Mary S. Emslie, was appointed executrix thereof without bond, entered into possession of the property, and continued such possession until her death in 1903. She left a will naming J. W. Carr as executor of her estate and authorizing him to sell all of her property, both real and personal, and directing him to pay from the proceeds thereof the legacies and bequests provided for therein. Carr qualified as
In Bennett v. Hibbert, 88 Iowa, 154, the will under consideration devised to the defendant Hibbert, who was a nonresident alien, certain lands as the remainder of the testator’s estate. The question was there presented whether he could take under the provisions of chapter 85, Acts of the Twenty-Second General Assembly. It was held that Hibbert could take under the will, because he was a purchaser within the meaning of the second section of the act. While the alien- brothers and sisters of William Emslie would take, if at all, as devisees under the will, they could only take as such devisees by showing that they were his legal heirs at the time of his death, for the devise is expressly limited to such heirs. His brother George Emslie, and his sister Annie E. Clark, were legal heirs, because they were citizens. But the nonresident alien brothers and sisters were not legal heirs of the testator for the reason that the statute prohibited their taking by descent under the law. In Opel v. Shoup, 100 Iowa, 407, it was held that section 1 of the act under consideration prohibited the descent of property to nonresident aliens, and that such aliens were not heirs who could inherit property in this state. We also held, in Burrow v. Burrow, 98 Iowa, 400, that a nonresident alien could not take by descent. And see, also, Furenes v. Mickelson, 86 Iowa, 508; King v. Ware, 53 Iowa, 97; Brown v. Pearson, 41 Iowa, 481.
To constitute one the legal heir of another, he must-have inheritable blood. 2 Blackstone, 249. And where
It is conceded that George Emslie and Annie E. Clark had actual knowledge of the fact that Mary S. Emslie had foreclosed the mortgage which she held against her husband, William Emslie, and that said. Mary S. Emslie, after receiving the sheriff’s deed, was claiming to be the absolute owner of all of the real estate covered by said mortgage, and that she continued to make such claim as long as she
The doctrine rests on the presumption, under the circumstances stated, that the legacy was intended as a satisfaction of the debt. Such presumptions are not favored by equity, however, and it is the general rule that slight circumstances will rebut them. Thus it has been held that a direction in the will for the payment of debts rebuts the presumption. Chauncey’s Case, 1 P. Wms. 408; Strong v. Williams, 12 Mass. 391 (7 Am. Dec. 81); Wesco’s Appeal, 52 Pa. 195; Van Riper v. Van Riper, 2 N. J. Eq. 1; Story’s Equity, sections 1104, 1119, 1123. And where the legacy was less than the amount of the debt, or is of a different nature, the same rule is applied. See cases supra. In addition to the fact that the will expressly provides for the payment of all just debts, it fairly appears from the record before us that the legacy here was much less than the debt.
Other matters are discussed by the appellants, but what we have already said disposes of the controlling questions, and we need not extend this opinion. Eor the reasons stated, the judgment of the trial court should be and it is, —Affirmed.