In re Newcomb's Will

• Decision Date: 14 May 1896
• Citation: 67 N.W. 587,98 Iowa 175
• Parties: IN THE MATTER OF THE WILL OF PATIENCE V. NEWCOMB, Deceased, v. GEORGE W. FITCH, Appellant
• Court: Iowa Supreme Court

67 N.W. 587

98 Iowa 175

IN THE MATTER OF THE WILL OF PATIENCE V. NEWCOMB, Deceased, v. GEORGE W. FITCH, Appellant

Supreme Court of Iowa, Des Moines

May 14, 1896

Appeal from Scott District Court.--HON. C. M. WATERMAN, Judge.

PATIENCE V. NEWCOMB died testate August 20, 1891. Her will consists of the original and three codicils. The second and third clauses of the will give to the First Presbyterian Church of Davenport, for specified purposes, three thousand dollars. The fourth clause, as modified by a codicil, gives to eight benevolent societies the sum of six thousand five hundred dollars. The fifth clause provides for the purchase of a scholarship in the Northwestern Theological Seminary of Chicago, at a cost of three thousand dollars. The sixth clause, as modified by a codicil, provides for the purchase of two scholarships in the Parsons College at Fairfield, at a cost of four thousand dollars. The bequests to the benevolent societies and the three scholarships are to be paid from the sales of real estate. The eighth clause bequeaths the sum of sixty-four thousand dollars to seven persons, to be paid from the avails of notes and mortgages one year after her decease. The tenth, eleventh, and twelfth clauses, as modified by a codicil, bequeath the sum of ten thousand, eight hundred and fifty dollars to different persons, to be paid out of the avails of notes and mortgages as soon after her decease as possible. The following is the fourteenth clause of the original will and the fifth clause of the original codicil "Fourteenth. It is my will that all my real estate be divided (or sold as thought best by my executors), and avails divided into four equal parts; One part to my sister Delia M Rorer, of Burlington, Iowa; one part to my niece Louise D. F Farrand, of Rochester, N. Y.; one part to my two nieces Augusta V. McMillan, of San Francisco, Cal. and Josephine L Crew, of Lawrence, Kansas, to share and share equal; one part, and the fourth part, to my niece Mary H. Eckel, of Lake Benton, Minn., and Ellen D. Palmer, of Marshalltown, Iowa to share and share equal." "Fifth. In the fourteenth clause of my 'last will and testament it is stated that 'all of my real estate be divided or sold, as my executors thought best, and the avails of the same be divided in four (4) equal parts. It is now my will, that avails of my real estate be divided into five (5) equal parts, one (1) part--the fifth part--to George W. Fitch, to share and share equal." The following is the residuary clause of the will: "Nineteenth. It is my will that all the rest, residue, and remainder of my estate, real, personal, or mixed, of whatever nature or kind soever, whether legal or equitable, and wheresoever situated, I wish my executors to divide, or sell and divide (as they think best), in four equal parts, as described in the fourteenth clause of this, my last will. And I hereby authorize and empower my said executors, in their discretion, to sell and convey by good and sufficient deeds or instruments, all or any part of this, my residuary estate, as soon as may be after my decease, without sacrifice." The last clause of the will, after designating the executors, contains this provision: "And I hereby authorize and empower my executors, in their discretion, to make all sales of personal property or real estate necessary or proper to carry out the purposes and instructions of this, my 'last will and testament,' and to execute and deliver good and sufficient deed or deeds thereof, or other instruments of conveyance." On the third day of November, 1893, the executors filed their second report, showing that all claims against the estate had been paid or adjusted; that the real estate, except a small part, had been sold, and the proceeds ready for distribution. It also appears from their report, that the assets in their hands, exclusive of the proceeds of the real estate, are not sufficient to pay in full the bequests not directed to be paid from the real estate. They further say, that they are informed and believe they should pay the bequests from the proceeds of the real estate other than those directed to be so paid in the will; but for greater certainty, they ask the court to construe the will in this particular. They further state, that George W. Fitch, a devisee in the will makes the claim, that under its provisions he is entitled to a fifth share in the residuary estate, and they ask the court to also construe the will in this particular. There are other questions, not important, to be here noticed. The district court, upon the two propositions, made the following order: "First. That it is the true construction of the said will and codicils, if there should not be a sufficient amount of the personal assets of the estate of the said Patience V. Newcomb, to pay in full the legacies under said will and codicils, which are not expressly directed to be paid from the avails of the sales of real estate, then the deficiency in said legacies shall be paid out of the real estate, or avails of the sales thereof, which may remain after the payment in full of those legacies which are expressly directed by the will or codicils to be paid from the real estate of the testatrix. Second. That it is the true construction of the said will and codicils that George W. Fitch is not entitled to any share of the residuary estate of the said Patience V. Newcomb, but that all the said residuary estate, real, personal, or mixed, shall be divided into four equal parts, and distributed as follows: One part to the heirs at law of Delia M. Rorer; one part to Louise D. F. Farrand; one part to Augusta V. McMillan and Josephine L. Crew, share and share alike; and one part to Mary H. Eckel and Ellen D. Palmer, share and share alike." From these orders George W. Fitch appealed.--Affirmed and Modified.

AFFIRMED.

E. M. Sharon for appellant.

M. C. Putnam for appellee.

OPINION

GRANGER, J.

I.

It will be well, at the outset, to state some recognized rules of construction as applied to wills. The personal estate is the only one liable for the payment of legacies, unless they are expressly or by necessary implication, made a charge on real estate. 13 Am. & Eng. Enc. Law, 110; Wright v. Denn 23 U.S. 204, 10 Wheat. 204, 6 L.Ed. 303. A direction that the real estate shall be sold, and the proceeds form or be considered a part of the residuary personal estate of the testator, subjects the real estate to all charges affecting the personal estate. Watk. Wills, 292; Kidney v. Koussmaker, 1 Ves. Jr. 436. If legacies are given generally, and the residue of the real and personal estate is afterwards given in one mass, the legacies are a...