151 Iowa 149 | Iowa | 1911
John Wilts died testate September 5, 1908, seised of nearly a thousand acres of land and survived by his widow, Amelia Wilts, two sons, Otto and Henry Wilts, and the four children of a daughter, Vipke Santón. He left a will, executed December 8, 1904, in the first clause of which he directed “that all my just debts and funeral expenses shall by my executor hereafter named be paid out of my estate as soon after my decease as shall by him be found convenient.” The second clause, was as follows:
It is my will and I do hereby devise and bequeath to my beloved wife, Amelia Wilts, now living with me, one-third of all my property, both real, personal, and mixed, of which I shall die seised and possessed or to which I shall be entitled at the time of' my decease, she to have and to hold the same as her own, for her own use, benefit and behoof forever. And I do hereby revoke a certain antenuptial contract máde and entered into by my said*151 wife, and myself, before onr marriage, on the 21st day of June, 1895, and recorded in the office of the recorder of deeds, in and for the county of Hardin and state of Iowa, in Book 140 of Deeds on page No. 442, it being now my desire, for the benefit of my said wife, to relinquish all benefit upon me conferred by the said antenuptial contract, and to hold the same null and void for her benefit as my wife.
By the terms of the antenuptial contract, the widow had relinquished all right of dower or interest in his property which might otherwise accrue to her upon his death. Upon admission of the will to probate, the widow elected to take thereunder. The personal property proved insufficient to discharge decedent’s debts, among which were certain mortgages on real estate, and the controversy is whether these should be paid from the proceeds of the land generally, or of that portion which descended to the heirs. One of these mortgages in the execution of which the widow joined secures the payment of $5,700, on which- $700 has been paid, and the other the payment of $1,800. The' district court directed the sale of a quarter section of land, and that out of the proceeds thereof these mortgages, any' other outstanding indebtedness, and the costs of administration be satisfied, and that the widow take one-third of any of the proceeds remaining together with one-third of the land not sold, and that Otto and Henry Wilts have two-ninths thereof each, and the four children one-eighteenth each.
At the common law all devises of real estate were regarded 'as specific. “Other devises of land, whether in particular or general - terms, must of necessity be specific from the circumstance that a man can devise only what he has at the time of devising, . . . but it is quite different as to personal estate.” Howe v. Earl of Dartmouth, 7 Ves. Jr. 147. A will was construed as speaking from the date of its' execution, and so the lands which were intended to pass thereunder might be identified. The result of a sale or other disposition thereof was the same as when an article of personal property specifically bequeathed is adeemed — it is gone; and this is one of the criteria of specific legacy or devise. The fact that a devise of land was always specific seems to have been 'the real reason for placing lands devised after lands descended; in fact, in the class to be last charged with debts. Says Judge Redfield in his work on Wills, vol. 2, page 870: “The most obvious and the chief reason why descended estates have been held liable before devised estates is that every devise of real estate is regarded as specific.” So it was held that “where the devise of the personal estate and 'also of the real is specific, both must contribute to
Here the language of the will leaves no doubt but that the testator intended to dispose of after-acquired real estate, and the evidence fails to show whether that left was acquired before or after the execution of the will. In executing the will, then, he could not well have known the real property in which he undertook to dispose of an undivided third, and in such a case the reason for saying all devises are specific fails. Necessarily the disposition of after-acquired land may be general, and would be in a case like this.
The subject was considered in Re Estate of Woodworths, 31 Cal. 595, the court, after quoting a statute authorizing the disposition of after-acquired property by will, saying: “Now, a will made under this provision, by which a party should devise all the land of which he should die seised or possessed, it -is obvious, would have none of the characteristics before stated of a specific devise. A party might sell and convey land owned at the date of the will, and with the proceeds purchase others, and repeat the operation continually, and those lands, owned at the moment he should happen to die, would pass by the will; would take the place of those conveyed. Personal and real estate would stand upon the same footing in this respect; a devise of all one’s personal, and all of one’s real estate of which he should die possessed, would be equally
A like view was expressed in Blaney v. Blaney, 1 Cush. (Mass.) 107. In the will under construction, the devise was of only a part, namely, an undivided one-third, and this of all the decedent’s property described as real, personal, and mixed, and clearly can not be regarded as either a specific devise or bequest. Eor this reason the widow may not invoke the rule exacting the exoneration of specifically devised realty from the lien of testator’s debt by resorting to other property.
Under this rule there can be no doubt that resort should have been had to the payment out of the realty undisposed of by will for the satisfaction of decedent’s debts, and by all the authorities a mortgage on land executed by him must be regarded as one of these. The court erred in not directing the payment of the mortgages from the proceeds of the residuary estate. Reversed.