80 Iowa 436 | Iowa | 1890
— The land in controversy was owned by Jonathan B. Severance. The defendant’s father made his last will and testament on the thirty-first day of Ljecember, 1878, and afterwards died. He was a resident of the county of Middlesex, in the state of Massachusetts. His will was duly admitted to probate in that state, and was afterwards filed for record and recorded in Sioux county, where the land in controversy is situated. The question whether the defendant Prank B. Severance has any attachable interest depends mainly upon the proper construction of said will, and, as the separate clauses thereof are dependent upon and explanatory of each other, it is necessary to set out the greater part of said instrument. It is as follows: “Be it known that I, Jonathan B. Severance, of Malden, in the county of Middlesex and commonwealth of Massachusetts, being of sound and disposing mind and memory, do make and publish this, my last will and
The intervenors in the action are the executors of the will, and the trustees named therein, and certain assignees in bankruptcy. The executors and trustees claim that under the will the defendant Severance has no interest in the land. The assignees claim that Severance has been adjudged. a bankrupt by a court of insolvency in Massachusetts, and that all his property has been conveyed by proper proceedings to them for the payment of his debts. We do not think it is necessary to determine the questions presented by the assignees in bankruptcy. In our opinion, the rights of the parties must be determined by the terms of the will, and the acts of the parties under it, as shown by the evidence. By the first clause of the will the executors are directed to sell the real estate not otherwise disposed of by the will, and to execute and deliver proper deeds therefor. The executors named in the will accepted the trust. They had the power to sell and convey the real estate, and to receive the money therefor, and to dispose of it as directed in the will. The estate appears to have been quite large, and it was not supposed by the testator that it would be speedily settled. This is shown by the direction in the eighth clause, that the absolute legacies should be paid within five years; and the fact is that the estate is yet unsettled, and the executors are still acting in that capacity. There are still unsettled claims against the estate, and several suits at law are now pending. There is real estate in Massachusetts.