46 Iowa 692 | Iowa | 1877
Ve think this intention to make a disposition of his property by the decedent is sufficiently shown. It will be presumed that he spoke with an understanding of the effect of his words; the animas testandi will, therefor, be inferred. Hubbard v. Hubbard, 8 N. Y., 196; Parsons v. Parsons, 2 Greenleaf, 298.
The decedent at his death was possessed of certain real estate, and also personal property of the value of about five hundred dollars. The will sought to be enforced was not a disposition of personal property alone, but of all his estate.
The law is careful to carry out the intention of a testator when ascertained. If there be restrictions imposed by statute or otherwise, whereby the intention is partly defeated, the whole will is not to be set aside, but shall be enforced so far as it is not inconsistent with the law. The intention so far as established must prevail. Thus, in the case of nuncupation, when the witnesses do not fully agree as to the disposition of the property, the testament will be enforced so far as there is an agreement. Portwood v. Hunter, 6 B. Mon., 538. These rules are based upon the doctrine of intentions which control the construction and enforcement of wills. It has never been claimed that a will, valid as to certain property or persons therein named, will not be carried out that far, on the ground that it contains a disposition of other property, which the law will not enforce. Clemens v. Patterson, 38 Ala., 721.
The cases cited by defendant’s counsel in support of a different view are English decisions under the statute of 29 Car. 11, Ch. 3, Sec. 19, or American cases based upon similar statutes. The English statute provides that the witnesses, to establish a nuncupation, must have been “ bid by the testator to bear witness that such was his will.” Substantially the same provisions are found in statutes under which the American decisions following the English rule were made. See Burnett v. Jackson, 2 Phillim., 191; Parsons v. Miller, Id. 196; Arnett v. Arnett, 27 Ill., 247; Biddle v. Biddle, 36 Md., 630; Dawson’s Appeal, 23 Wis., 69; Sampson v. Brownimg, 22 Ga., 293; Winn v. Bob, 3 Leigh, 140.
It is presumed that statutes similar in their provisions are found in a majority of the states. This fact accounts for the existence of the rules the several courts have adopted. Our statute being different the decisions referred to have no bearing upon its interpretation. See 2 Jaiman on Wills (3d Am, Ed.),p. 133, and notes.
Y. By the j udgment of the court below the will in question was held valid for the amount of three hundred dollars, to be paid out of the personal estate of decedent. The judgment is in accord with the doctrines above presented. It is, therefore,
Affirmed.