188 Iowa 904 | Iowa | 1920
“To my beloved wife, Ellen M. Williams, a life interest in and to all real property of which I may die seised or possessed the same to use to her use and support, she to receive all rents, profits and emoluments, derived therefrom so long as .she shall survive me.”
In' the second paragraph:
“I will and bequeath that upon the death of my said beloved wife, that my said beloved son, Peter Williams, shall have and become owner in all real estate mentioned in the next preceding paragraph of a life estate therein and upon the death of my said beloved son the said property shall pass and go to the heirs of his body and become vested in them in fee simple, absolute, provided, however, should my said beloved son die without issue then the said real estate shall pass and go to his sisters, Lizzie F., Nellie H., and Jennie A., or to the survivors of them; it being my will that ¿11 of my real estate of whatever kind or nature of which I may die seized or possessed shall first be subject to the life estate or interest of my said beloved wife as provided in the first paragraph hereof, and upon her death shall pass to my beloved son, the said Peter, and that the said son shall have a life estate therein and that he shall not be privileged to mortgage or sell the said real estate or any part thereof except that he shall be allowed to mortgage the said real estate for the purpose of obtaining money with which to pay his sisters Lizzie F., Nellie H., and Jennie A., the several sums bequeathed to them as provided in the next succeeding paragraph hereof.”
The third paragraph:
“Upon the death of my beloved wife, Ellen M., I will and bequeath that my son, the said beloved Peter Williams, shall pay to my beloved daughter, Lizzie F., the sum of twen
In Paragraph 4, the testator disposed of his personal property; and in Paragraph 5, he directed who should pay the expenses of his last sickness and bui’ial of himself and wife, and provided for the erection of a monument at his grave. A copy of the will will be found in Williams v. Williams, 157 Iowa 621, in which case Peter Williams, Jr., was held to have taken a life estate only. The widow, Ellen M. Williams, departed this life, December 14, 1904. The several legacies were not paid, as required by the will, —that is, in one year from the death of the widow, — probably owing to the minority of Peter Williams, Jr., who did not attain his majority until January 3, 1909. Shortly thereafter, he was married to the defendant Lillian Williams. In November of that year, Peter Williams, Jr., and his three sisters, legatees under the will, entered into an agreement extending the time of payment of the several legacies ten years, or until his death, if sooner, stipulating therein that the lien of the legacies against the real estate shall not be released thereby. He concluded, however, in November, 1911, to borrow money and pay these legacies, and first applied to the district court, sitting in probate, for authority to borrow $7,500 for that purpose. An order was entered in, probate, directing him so to do, but without causing notice of the application to be served on his minor children. In April, 1912, the mortgage for the above amount was executed by the defendants Peter and Lillian Williams,
“The said decree and supplemental decree heretofore entered in this cause be and the same are hereby modified and changed to the extent that the judgment herein referred to shall not have any force or effect against the said minors herein referred to, nor shall the same affect the interest of said minors in and to the real estate in said decree described.”
The main issue to be determined is whether the will
“The provision for the payment of a sum to Mrs. Preston monthly during her-natural life, and making it a lien upon the premises until paid, created, at most, a lien upon the estate actually granted to the devisee, and did not enlarge it.”
This seems to have been pure dictum; for it was not one of the questions the court undertook to decide, as appears from the opinion. At most, it was said by way of argument, as negativing any inference which might be drawn from the. charge’s being a lien on the remainder. The other case cited, Giles v. Little, 14 Otto (U. S.) 291 (26 L. Ed. 745), has since been overruled by Roberts v. Lewis, 153 U. S. 367 (38 L. Ed. 747), construing the fee to have passed to the widow. The principle obtains, however, as stated in Giles v. Little, supra, that:
“When a power of disposal accompanies a bequest or devise of a life estate, the power is limited to such disposition as a tenant for life can make, unless there are other words clearly indicating that a larger power is intended.”
See Henderson v. Blackburn, 104 Ill. 227 (44 Am. Rep. 780). The language of wills differs so radically that little aid is to be found in the decisions of this and other courts. Three features of the will are important. The first of these is that the land devised is nowhere described, and is referred to throughout the instrument as real property or real estate. Peter Williams, Jr., is required to pay the legacies within one year after the death of the widow. They are made his indebtedness, which he assumed in accepting under the will. The legacies are made “a charge and lien upon all real estate left in my estate and passing into* the hands of my beloved son, Peter, as in the next preceding
“It being my will that all of my real estate of whatever kind and nature of which I may die seised or possessed shall first be subject to the life estate or .interest of my said beloved wife as provided in the first paragraph hereof, and upon her death shall pass to my beloved son, the said Peter, and that the said son shall have a life estate therein and that he shall not be privileged to mortgage or sell the said real estate or any part thereof except that he shall be allowed to mortgage the said real estate for the purpose of obtaining money with which to pay his sisters, Lizzie F., Nellie EL, and Jennie A., the several sums bequeathed to them as provided in the next succeeding paragraph hereof.”
It will be observed that the subject of disposal is “all of my real estate of whatever kind or nature;” that he first disposes of a life estate to his widow, and, following that, to his son. If he had stopped, then the son might have done with his life estate as he pleased, but he could not have incumbered the remainder; so the testator proceeded to deny him the privilege to mortgage or sell “the said real estate or any part thereof.” To what “real estate” did this refer? Manifestly, that previously mentioned: that is, “all of my real estate of whatever kind or nature.” He continues:
“Except that he shall be allowed to mortgage the said
“Strictly speaking, interest on a legacy is in the nature of damages or compensation to a legatee for withholding the payment of a gift after it is due, according to the terms of the will. If not then paid, the estate of the testator or executor of his' will is liable as any other debtor for legal interest from such day; and this is true, although the estate be not ready for final settlement, or the money with which to pay it be not yet available. Interest so exacted
See, also, 2 Woerner on Administration (2:d Ed.) 1004-The case at bar is to be distinguished from that of Buchanan v. Hunter, supra, for the neglect of the executor to pay as exacted in the will is not involved. Here, the burden of payment was cast upon the life tenant, though secured by the lien of the legacies against the estate. The design of the testator, manifested in the will, was that the legacies should be paid within a year after the life tenant took possession. The legacies were to be paid at.a determinable date, i. e., within one year from the death of the first life- tenant; and it is to be assumed, in the absence of anything to the contrary, that he intended that the law with reference to the payment of interest should apply, the same as in any case where an obligation matures and is not met by payment. The rate of interest to be charged, in the absence of other provision, is determined by the law of the domicile. Welch v. Adams, 152 Mass. 74 (9 L. R. A. 244), and valuable note; Sloan’s Appeal, 168 Pa. St. 422; Gray v. Case School of Applied Science, 62 Ohio 1 (56 N. E. 484). Such interest is exacted when the legacy is made a charge against land. Glen v. Fisher, 6 Johns. Ch. *33 (10 Am. Dec. 311); Brotzman’s Estate, 133 Pa. 478 (19 Atl. 564) ; Van Bramer v. Executors of Hoffman, 2 John. (N. Y.) 200 (1 Am. Dec. 162). See, also, collection of cases in 40 Cyc. 2101. As the second life tenant enjoyed the use of the land from the date of the death of the first life tenant, there appears no sound reason for relieving the former from the payment of interest on the legacies from the day of their maturity. Being in the enjoyment of rents and profits of the estate, he was required, under the law, to pay the interest on incumbrances charged as liens against the estate. Had the second life tenant executed a mortgage to raise