Ballinger v. Connable

• Decision Date: 10 December 1896
• Citation: 69 N.W. 438,100 Iowa 121
• Parties: BALLINGER ET AL. v. CONNABLE.
• Court: Iowa Supreme Court

100 Iowa 121

69 N.W. 438

BALLINGER ET AL.

v.CONNABLE.

Supreme Court of Iowa.

Dec. 10, 1896.

Appeal from district court, Lee county; A. J. McCrary, Judge.

This is an appeal from an order of the district court approving and confirming a report made by the plaintiffs as executors of the last will and testament of A. L. Connable, deceased. The order of the court was excepted to by Edwin H. Connable, one of the devisees named in the will, and he appeals. Affirmed.James H. Anderson, for appellant.

James C. Davis, for appellees.

ROTHROCK, C. J.

1. Albert L. Connable, the testator, died in the month of April, 1894. He left three sons surviving him, named Albert E. Connable, Howard L. Connable, and the appellant, E. H. Connable. On the 31st day of December, 1887, he executed his will, by which he bequeathed all of his property to his said sons; each one to have one-third of his estate after taking an account of certain advancements made by him to them. That part of the will necessary to be considered in determining this appeal is as follows: “I desire that my estate shall be considered as including all advancements which I have heretofore made to each of my three sons, for the purpose of division, and that the principal amount advanced by me to each, without any interest thereon, be considered as part of my estate in their hands, respectively, whether the same be evidenced by note, book account by me, receipt, or conveyance of real estate,--the consideration named in the conveyance to be considered, for the purposes of settlement, the amount of the advancement, or, if no sum is named, the actual cash value of same at the time of division of the estate shall be considered its value. I recommend that my executors take into their counsels, in disposing of my estate, my friend Charles P. Birge, who is cognizant of most of my business, and that they pay him fairly for any service he may render them in the settlement of the estate. * * * I desire the contract between myself and Charles P. Birge be carried out by my executors as the same is made, and that a reasonable time be allowed to close up the matters which we have in connection together. After my debts are paid, and expenses of settlement of the estate and any bequest which I may make by codicil hereto are provided for, it is my desire that all my estate be divided equally, share and share alike, between my three sons, Albert E. Connable, Howard L. Connable, and Edwin H. Connable. The property may be dividedin kind, the executors making such division and designating the part to each, having regard to the preferences or wishes of each, so as to give to each an equal share therein, making transfers of personal assets and conveyances of real estate, for which purpose the title to the real estate is hereby conferred to them of all the real estate of which I may die seised, their decision to be final.” It is further provided in the will that the division of the property shall be made “with as little trouble as possible.” And, as showing the confidence reposed in the executors by the testator, a codicil to the will is in these words: “I further will and direct that should my estate be put to any expense by any of the beneficiaries under this will contesting this will, that the amount of such expense, including attorney's fees which are rendered necessary to be paid by my executors in defending against such contests or suits, and that any expense which may be made to the estate in contesting any decision of my executors in making division of my estate, in their discretion, shall be chargeable alone to the share given by the foregoing will to such devisees or beneficiary, and to such extent the devise to such beneficiary is charged hereby.” A second codicil to the will is as follows: “This codicil, made by me, Albert L. Connable, to my last will and testament, as appears by the foregoing pages, for the purpose of adding to the provisions of said will the following bequest: I desire to set apart in the hands of my said executors, to be charged to the share in the said will given to my son Edwin H. Connable, fifty (50) shares of the capital stock of the Keokuk Savings Bank (share $100 each) for the benefit of my said son Edwin H. Connable and to the heirs of his body. I direct my said executors to collect and pay to my said son during his lifetime the dividends on the said stock as same may be declared after my death, same to be paid each time into his own hand; and no alienation or transfer of same shall be valid, whether said transfer or alienation be voluntary or involuntary on his part. And no anticipation in any manner of the receipt of such dividends shall be valid or binding, but same shall be paid to him personally, notwithstanding any attempt by him to transfer same. Should it be necessary at any time to change the investment, by reason of terminaation of the bank or any other reason, my said executors shall reinvest the proceeds of said bank stock in some other interest or income bearing securities, which shall be held by my executors in the same manner as such bank stock during the life of my said son Edwin H. Connable, remainder over to the heirs of his body, or, in case he shall have none, it shall become part of my estate, to be distributed as aforesaid.” The will was duly admitted to probate, and Ballinger and Mathias, who were named therein as executors, proceeded to settle and distribute the estate as directed by the will. They took an account of the advancements, and made a division of part of the property, and filed their report of the division made. This report is too voluminous to incorporate in an opinion. It is sufficient to state generally that, in making a division of the estate, the son named Albert E. Connable was found to have had advancements amounting to several thousand dollars, and he had received conveyances of land, including what was denominated as his “Home Farm,” of 268 acres, in Hancock county, Ill. This farm was appraised by the executors at the sum of $17,500. Some bank stock was also set apart to him, so that the total value of property set apart to him amounted to $28,656. The advancements and division made to Howard L. Connable amounted to $19,316. The following is a statement of the advancements made to Edwin H. Connable, the appellant herein:

To Edwin H. Connable.

+----------------------------------------------------------+
                ¦By book account                                ¦$ 7,344 96¦
                +-----------------------------------------------+----------¦
                ¦By notes, Exhibits 9, 10, 11, 12, 13, and 14   ¦3,018 02  ¦
                +-----------------------------------------------+----------¦
                ¦By fifty shares Keokuk Savings Bank stock      ¦7,500 00  ¦
                +-----------------------------------------------+----------¦
                ¦By E. hf. L. 6, B. 65, Keokuk, Iowa, Exhibit 15¦9,000 00  ¦

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