120 Iowa 85 | Iowa | 1903
By his will and the codicils attached Matthias Frahm provided, among other things:
“VIL All the balance of bonds and shares of stock cf the Davenport Malting Oo. owned by me and not specially bequeathed above or in my will I give and bequeath as follows: to wit: — One-thirteenth of said bonds and one-thirteenth of said shares of stock to each of the following parties to wit:—
“1st. party, — the heirs of Peter Frahm, deceased.
“2nd. party, — the heirs of.Olaus Frahm, deceased.
“3rd. party, — the heirs of Jergen Frahm, deceased.
“4th. party, — the heirs of Detlef Frahm, deceased.
“5th. party, — the heirs of Johann Frahm, deceased.
“6th. party, — the heirs of Hans Frahm, deceased.
“'7th. party, — the heirs of Frederich Frahm, deceased.
*87 “8th. party, — the heirs of Max Frahm, deceased.
“9th. party, — the heirs of Heinrich Erahm, deceased.
“10th. party, — Margaretha Siert.
“11th. party, — Christ Diehn. .
“12th. party,- — Catherine Lange.
“13th. party, — Peter Hartwigsen of Sioux County, Iowa, under this condition: Said Hartwigsen shall receive the income of this share during his life time, and after his death, this share shall pass to Mary Moeller and Willie Moeller, the two eldest children of Hans Moeller, being grandchildren of Peter Hartwigsen. * * *
“As I have either sold or given an option on my shares in the Davenport Malting Company at 65 cents and 75 cents on the dollar of the par value of the same, I herewith provide that wherever in my said will and codicil thereto, I have given a legacy consisting of a certain amount of said shares, in lieu thereof I now give and bequeath a sum of money equal to sixty-five per cent, of the par value of said shares, to take the place thereof.”
In other provisions of the will testator disposed of $175,-000 worth of bonds and $18,700 worth of stock to other legatees. He in fact had at one time an interest in the Davenport Malting Company, a corporation, amounting to $50,000, so that, had he retained his interest until his death, there would have been an interest of $13,800 in that corporation which would have passed under the clauses of the will we have quoted, or gone into his general estate for disposition under other clauses of the will or as provided by statute.
There is little or no dispute regarding the facts, and such as are regarded material we shall here state: The original will was drawn November 28, 1895. The first codicil, from which we have quoted, was made August 16, 1897, and the last November 19, 1898. It appears from the evidence that in October of the year 1894 the testator, who, with his son, was engaged in conducting a brewery, entered into an arrangement with a number of other men,
It will be noticed that at the time of the making of the will and codicils quoted two certificates of stock had been issued in favor of Erahm, one for
The note which lies at the bottom of this controversy was issued pursuant to the following resolution passed by the directors of the malting company corporation in response to the petition hitherto mentioned, which was 'signed by Frahm and others: “Motion by Herman Wolf, seconded by Góorge Mengal, to carry out our contract formed at the time of the consolidation to hold equal parts of stock and bonds, and to issue to owners for that part still clue in bonds, notes payable on or before two years .from January 1, 1899, at five per cent interest per annum.”
Did the seventy-five shares of stock, or the note issued in lieu thereof, pass under the will to the thirteen legatees named? Appellant says, “No,” because the stock was never delivered to Frahm, and, if it had been, he (Frahm) had at the time of his death made an agreement to take the note of the company in lieu thereof, and that this right or this note could not and did not pass under the will. The will passed all the balance of the bonds and stocks owned by him (testator) to the thirteen legatees. At the time of his death there had been issued seventy-five shares of stock, which were convertible into bonds of the company, and for which the company had agreed at some time to issue its promissory note. Construing the will in the light of these facts and the other evidence in the case, we are abidingly satisfied that the testator intended the seventy-five shares of stock which stood in his name to pass to the thirteen legatees. True, he had signed a petition requesting that a note be issued in their place, which had been accepted by the company; but no note had in fact been issued, and there is little doubt that he intended this $7,500 interest, no matter what its form, to pass under the paragraphs of the will quoted. The evidence introduced
II. But it is said the legacy was adeemed by the contract for the conversion of the stock into a note of the company. The general rule is that, when a chattel speci-
Parol evidence was admissible in this case for the purpose of identifying the subject-matter. In view of the various contracts and agreements made,by the testator
III. Some matters of practice are argued by appellant. They do not seem to have been raised in the trial court and consequently cannot be considered here. All these matters seem to be ruled adversely to him, however, by Schoening v. Schwenk, 112 Iowa, 733.
The.court correctly construed the will, and its decree is AFFIRMED.