Bellamy v. Bellamy
| Decision Date | 14 December 1918 |
| Docket Number | No. 32346.,32346. |
| Citation | 184 Iowa 1193,169 N.W. 621 |
| Parties | BELLAMY ET AL. v. BELLAMY ET AL. (COREY, INTERVENER). |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Monroe County; Seneca Cornell, Judge.
Action to construe a will. Opinion states the facts. Decree in the court below is against the construction placed on the will by the intervener. Intervener appeals. Affirmed.J. C. Mabry, of Albia, for appellant.
N. E. Kendall, of Albia, for appellees.
This action is brought by the administrators of the estate of Harvey W. Almack for leave to sell certain real estate for the purpose of paying debts, and for a division of what remains of the proceeds, according to the terms of the will of the said Harvey W. Almack.
S. A. Corey intervened, claiming to be a creditor of one of the devisees in the will, to wit, Ethel Jones, and alleges that the said Ethel Jones, under the terms of the will, is entitled to an undivided one-eighth of an undivided two-thirds of the real estate. After the intervention was filed, it was stipulated that the rights of the parties depend upon a proper construction of the will.
It is contended by the intervener, S. A. Corey, that the said Ethel Jones, as legatee under the will, took an absolute bequest of an undivided one-eighth of an undivided two thirds of the real estate of which the testator died seised; that by the terms of the will she took the same share as the other children of the deceased mentioned in paragraph three of the will.
On the other hand, it is contended by Ethel Jones and her children that she and her children took jointly an undivided one-eighth of an undivided two-thirds of the real estate; that the said Ethel Jones, by virtue of said bequest, took an equal share with each of her children in an undivided one-eighth of the undivided two-thirds. So it is apparent that, if intervener succeeds, one-eighth of two-thirds of the real estate passed to Ethel Jones, and is subject to his judgment.
If the contention of Ethel Jones and her children prevails, then the intervener is entitled to claim only one-fourth of one-eighth of two-thirds of the real estate devised; for it is conceded that Ethel Jones had three children living at the time of the death of the testator, and these children are still living.
It is conceded that the widow mentioned in the will elected to take her distributive share in lieu of the estate bequeathed to her in the will.
The first paragraph of the will provides for the payment of his debts.
The second gives to his wife a life estate in all his property.
The third, the one in controversy, is as follows:
“I will and devise all that portion of my estate remaining at the death of my said wife to my beloved children, viz.: Nellie B. Bellamy, Gertrude Grimes, Lora Rochelle, Ethel Jones, Harvey Willis Almack, Edna G. Almack, Roll Almack and Ida Barger, share and share alike, except the share of Ethel Jones shall go to her and her children in being at the time of my death in common.”
It is the claim of the intervener that, under the first part of the bequest in this third paragraph of the will, Ethel Jones took the same share as the other children, to wit, an undivided one-eighth of the two-thirds remaining after the widow's distributive share was carved out; that what followed is inconsistent with this absolute bequest, and is therefore void for repugnancy.
The claim of Ethel Jones and her children is that the will, taken as a whole, shows that it was the intention of the testator to vest in her and her children living at the time of his death the one-eighth mentioned in the first clause in common, and this intention must prevail.
The testator left eight children, and at the time of his death was the owner of this property. He had a right to dispose of it as he saw fit, and it follows logically that whatever disposition he has made of it in this will is binding upon his heirs and upon this court.
[1] We start with the proposition that the intention of the testator is the controlling consideration, and this intention must be gathered from the will itself. The will itself is the only evidence before us of what he intended and what his purpose was in making a testamentary disposition of his property.
[2] The intervener invokes the rule that when a testator makes a definite disposition of certain of his property to A., then later in the same will makes a definite disposition of the same property to B., the first disposition must prevail; that the second is repugnant to the first. It would be apparent that with such contradictory expressions of intent it is impossible to know which of the two the testator intended should take the property. He so worded his will that it is impossible for the court to say, from the wording of the will, which of the parties he intended should be the recipient of his bounty. The courts therefore have said--and it has become a canon of construction--that the court will look to the first provision of the will as expressing his intent, not for the purpose of defeating his intent, but for the purpose of finding it. This canon of construction has been long recognized and enforced by the courts, and it will be presumed that the testator knew this canon of construction, and that in making the first bequest to A. it was his intention that A. should be the recipient of his bounty, and not B., because he is presumed to know that in the application of this rule of construction the second is repugnant to the first, and the first must prevail. Therefore, when confronted with such a condition, the court says that it was his intention to make A. the beneficiary of his bounty, and not B. No authority need be cited in support of this rule.
Again it has been said that, where the will gives an absolute title to A., with a subsequent direction as to the disposition of whatever remains after the death of A., such subsequent direction will not affect the passing of such absolute...
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