194 Iowa 1078 | Iowa | 1922
Simon Dewhirst died November 17, 1914, survived by his widow, Eliza Dewhirst, and two daughters and a son by his marriage to said widow. He also left surviving him three daughters by a former marriage. Decedent left a will, which was duly admitted -j-q probate on the 20th day of April, 1915, said will being as follows:
“1. It is my desire that out of my estate, first, all my
“2. To my beloved wife, Eliza Dewhirst, I give and bequeath all my property, real estate and personal property of every description whatsoever with conditions only as stated in No. 3, following.
“3. Provided that the said Eliza Dewhirst shall not in any way whatever be restricted in the control and management of the said property, either real or personal, in buying, selling, or in investing the proceeds of the same, just so long as she remains my widow, provided that if she shall again marry, then there shall at once be an accounting and she shall be allowed t'o retain one third of the said property, which shall be duly set over to her and the remaining two thirds shall be divided ' equally among our three children, to wit: Mabelle Taub, née Dewhirst, Marguerite Dewhirst and Howard Dewhirst.
“4. It is my desire and request that as soon as the money can be raised out of my estate without sacrifice or detriment to the family living, one hundred ($100.00) dollars to be given to each of my three daughters by a former marriage, their names and present abodes are as follows: Mrs. R. B. Thomas, New York; Mrs. Gertrude Bergman, Youngstown, Ohio; Anna Laughlin, Cleveland, Ohio. And the executrix of this will is hereby directed to provide the money and make the said payments. ’ ’
The widow was appointed as executrix of said will, and filed her final report on May 18, 1916. Upon application, the court entered an order fixing the method of service of notice and the date of hearing on said final report, and notice was posted in accordance with said order; and on September 25, 1916, the court entered an order approving said report and discharging the executrix. The widow died, intestate, March 27, 1917, without having remarried, survived by her three children, the issue of the marriage to the testator; and in the spring of 1920, the said children conveyed said premises to the appellee. Subsequently, this action was brought, to quiet title in the appellee.
I. The first question for our consideration is the proper
A similar question has been presented to this cqurt a number of times. Busby v. Busby, 137 Iowa 57; In re Will of Weien, 139 Iowa 657; Brunk v. Brunk, 157 Iowa 51; Price v. Ewell, 169 Iowa 206; Staack v. Detterding, 182 Iowa 582; Jones v. Clyman, 193 Iowa 1248; and other like eases.
We have had occasion to review our previous holdings in the quite recent case of Vaughn v. Converse, 184 Iowa 891, and it is unnecessary that we repeat the discussion contained in the opinion in said case. The provisions of the will in the Vaughn case are strikingly similar to the provisions of the will in the case at bar. By the terms of the will in the Vatoghn case, the testator gave and devised all his real and personal property, of every kind and description, to his wife, to have, hold, and control the same, “so long as she remains my widow.” Another paragraph of the will provided that, in the event the widow should remarry, then she should receive one third of all his real and personal property, and that the residue thereof should be equally divided among his children. In a codicil to the will, the testator gave to the wife the express power to sell and convey his real estate and execute a deed therefor, the same as if he were living.
The provisions of the will in the instant case are identical
In the Vaughn case, we held that the intent of the testator was to devise a fee, subject to the condition respecting remarriage. As in the Vaughn case, in this ease there is no provision for any disposition of the remainder after the death of the wife. It is only after remarriage.
The distinction between a will of this kind and the will considered by us in the Brurik case and in the Price case is clearly pointed out in the Vaughn case. In respect to the provisions in the will conferring upon the wife the power to sell and convey the real estate, as being wholly unnecessary if it was the intent of the testator to devise a fee, we said, in the Vaughn case:
“The suggestion is not without its significance. But, in view of the fact that the will burdened the wife’s fee with a condition, breach of which would defeat the title, the codicil can fairly be construed as intending to suspend such condition in favor of a purchaser, and to permit a sale and conveyance during the widowhood without subjecting the title in the hands of the purchaser to the menace of the condition. ’ ’
¥e think there is no escape from the conclusion that the testator by this will created a base or determinable fee in his surviving widow, subject only to the condition against remarriage, which condition became ineffective; that the widow died seized in fee simple of the real estate; and that, upon her death, intestate, the same passed to her heirs, the grantors of the appellee.
II. The remaining question in this case relates to the rights, if any, of the appellants under the fourth paragraph of the will of the testator, which paragraph is as follows:
It is contended that the provisions of this paragraph of the will are precatory, and that the beneficiaries named therein acquired no absolute right to the payment of the bequests. This contention is based upon the use of the words:
“It is my desire and request that as soon as the' money can be raised out of my estate without sacrifice or detriment to the family living, one hundred ($100.00) dollars to be given to each of my three daughters by a former marriage.”
In Porter v. Tracey, 179 Iowa 1295, we said:
“It is true that compliance with a testamentary provision which is precatory only is not compulsory, but, before the court will so construe the testator’s language, it must clearly appear that such was his meaning. The words, ‘I desire,’ are found very frequently in wills, and while, in some cases, they have been held to express a mere wish, as distinguished from a command, they have much more often been accorded the effect of a specific direction, which is binding upon the executor and tipon the beneficiaries. For example, see the following illustrative cases, collated in Vol. 3, Words & Phrases, 2028: ‘I desire’ has been held to be ‘the equivalent of a positive direction.’ Stewart v. Stewart, 61 N. J. Eq. 25. It should be construed as a command in polite form (Weber v. Bryant, 161 Mass. 400). Equivalent of the words, ‘I will.’ Appeal of City of Philadelphia, 112 Pa. 470. See, also, Oyster v. Knull, 137 Pa. 448; Brasher v. Marsh, 15 O. St. 111; In re Pforr’s Estate, 144 Cal. 121; Moseley v. Bolster, 201 Mass. 135; Trustees of Pembroke Academy v. Epsom. School Dist., 75 N. H. 408.”
See, also, Harrison v. Langfitt, 158 Iowa 479.
We hold that the words “desire” and “request” in the will of the testator are not precatory, but are the equivalent of a specific direction, and constitute a valid bequest to the beneficiaries named.
Stress is laid upon the fact that the will contains a clause
In her final report, the executrix stated':
"That the .executrix has not yet paid said bequests, as requested in said will, for the reason that the money cannot be raised out of the estate, without sacrifice or detriment to the family living, but that she proposes to pay said sums whenever she disposes of the real estate owned by the said testator at the time of his death.”
This was a recognition by the executrix of the validity of the said bequests, and was consistent with the provisions of the will hr regard to the payment of these bequests under conditions that might be detrimental' to the family living.
We hold that the will gave a bequest of $100 each to the appellants, which should have been paid by the executrix out of the -proceeds of the estate of the testator. Said bequests, how-. ever, were not made a specific charge against any property of the testator's, either real or personal. The general direction to the executrix is to provide the money and make the said payments, and it would necessarily follow that this must be done out of the general assets of the estate. There being no specific charge against
It follows that the decree of the district court quieting title to said described real estate as against the appellants was correct, and the said decree is affirmed.
III. In- the matter of the estate of Dewhirst, submitted with the action to quiet title', the appellants filed an application for an order setting aside the approval of the final report, and prayed the appointment of an executor, to carry out the provisions of the will of the said testator and pay the legacies provided in said will. The said application recites the making of the will, and the terms thereof respecting the bequests of $100 each to the appellants, and alleges that the executrix in said estate filed an inventory on May 17, 1916, from which it appears that, more than one year after the appointment of said executrix, there remained in her hands the sum of $636.47 in cash, and certain shares of stocks, and household goods. The appellee moved to strike the said application on the ground that the same showed on its face that the estate had been fully settled and the executrix discharged on September 25, 1916, and that the court n.o longer had jurisdiction of said estate. It was stipulated that the final report of the executrix was filed May 18, 1916; that an order was duly entered by the court, fixing the method of service of notice on said final report; that notice was given in accordance with said order, and proof thereof duly filed; and that the final report was duly approved on September 25, 1916. The application to reopen the estate was filed October 20, 1920. It also appears that the real estate referred to was the homestead of the testator at the time of his death, and was worth about $3,000.
The trial court sustained the appellee’s motion, and struck from the files tile application to reopen said matter in probate.
Our statute, Code Section 3261, provides that the hearing
Code Section 3398 is as follows:
“Mistakes in settlements may be corrected in the probate court at any time before his final settlement and discharge, and after that time by equitable proceedings, on showing such grounds as will justify the interference of the court.”
Code Section 3399 is as follows:
“Any person interested in the estate may attend upon the settlement of his accounts and contest the same. Accounts settled in the absence of any person adversely interested, and without notice to him, may be opened within three months on his application. ’ ’
Under these sections, the appellants are in no position now to insist upon the sustaining of their application to reopen the estate of the said testator and correct the mistake made in the settlement by the failure to pay the legacies provided for them. If said mistake in final settlement may now be corrected, under
The trial court did not err in sustaining the appellee’s motion to strike the appellants’ application to reopen the estate of the testator.
The decree of the trial court is, in all respects,' — -Affirmed.