25 S.D. 237 | S.D. | 1910
Two appeals taken by different defendants from the judgment in one cause are submitted together by consent of the court. The only matter for determination is the construction to be given to the will of one John G. Zimmermann. It is unnecessary to recite the contents of such will in full. A fair synopsis of the same, so far as material to this appeal, is as follows : By the first clause he directed a vault to be constructed for the interment of his body, and a monument costing not less than $3,000 to be erected. This was to'be'done-under the direction of Joseph Bockler, one of his executors, who was to receive $500 as compensation for -this special 'service. By the fourth and sixth clauses he divided all of his South Dakota real estate between his daughters Laura Zimmermann and Rose Schwengel by specific descriptions. The fifth clause of the will is as follows: “Fifth. I give, devise and bequeath to my said daughter Laura Zimmermann, all wheat of which I am the owner or in which I have any interest, stored on lands belonging to me situate in South Dakota or Minnesota; and I give and bequeath to my said daughter Laura Zimmermann one-half of any and all grain that may be sowed or raised -on any of my sa-id lands during the year 1906.” Seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, and fourteenth clauses give certain money legacies amounting to $5,500 to his other children, grandchildren, brother, and other persons. The fifteenth clause is as follows: “Fifteenth. I give,
Upon the trial of this case below the court admitted oral testimoney in explanation of certain clauses in the will. It is conceded that some of this testimony was properly received, but it is the
The question raised bv these appeals are whether crops of 1906 passed as personal property or passed with the land, whether clause “Fifteenth” created a residuary or a specific devise, and whether the personal property bequeathed to the daughter Laura by the “Fifth” clause of the will was so bequeathed subject to be used if needed to pay the bequests, etc., mentioned in “Sixteenth” clause. The evidence received showed that the personal property other than that described in clause “Fifth” was wholly inadequate
Did the crop of 1906 pass as personal property? Appellant in his brief does not discuss this question merely resting upon the assertion: “The 1906 crop had not been sown at time of testator’s death. It therefore could not pass as personal property.” We are unable to see any legal reason why a person cannot bequeath a crop yet to be grown the same as he could contract for sale of same or could mortgage it, and the right to so contract to sell or to mortgage is fully settled in this jurisdiction. Iverson v. Soo Elevator Co., 22 S. D. 638, 119 N. W. 1006. As hereinbefore noted, evidence was admitted on behalf of devisees named in clause “Fifteenth” to show that it was the intent of the testator to make by this clause a specific devise; it being the claim that the evidence shows that the will specifically describes all the real property not disposed of by preceding sections; and, over the objection of the daughter Laura, evidence was received to show that the personal property other than that described in clause “Fifth” was wholly inadequate to pay the money bequests, expenses, etc., referred to in clause “Sixteenth”; it being -the claim of the executors that such evidence showed that it must have been the intention of the testator that such part of the grain mentioned in “Fifth” clause as was needed in order to make such payments of such bequests, expenses, etc., was to be so used. The executors claim that clause “Fifteenth”, is unambiguous, and therefore no extrinsic evidence was admissible to aid in its interpretation.- The daughter Laura claims that clause “Fifth” is a clear, distinct, specific bequest; that it can be limited or affected only by words in such will clearly showing intent to so limit or affect it; that there are no words in the will limiting or affecting the clear -specific bequest; and that there being no ambiguity in the meaning- of said clause “Fifth,” and therefore no uncertainty as to
The question, then, for determination is whether or not there is any uncertainty or ambiguity in ¡such will in relation to the meaning of .the particular clauses referred to: If not, no extrinsic evidence should have been received. It seems to us that the will is perfectly clear and plain. As to clause “Fifteenth,” we need but ask: “What would have been the rights of the devisees therein named providing it had developed that the deceased left real property not specifically described in any clause of the will?” Section 1050, Rev. Civ. Code, provides: “A devise or bequest of all the testator’s real or personal property, in express terms, or
The judgment of the trial court and order overruling a new trial are affirmed.