Davis v. Close

• Court: Iowa Supreme Court
• Writing for the Court: DEEMER
• Citation: Davis v. Close, 104 Iowa 261, 73 N.W. 600 (Iowa 1897)
• Decision Date: 18 December 1897
• Parties: DAVIS v. CLOSE.

104 Iowa 261

73 N.W. 600

DAVIS

v.CLOSE.

Supreme Court of Iowa.

Dec. 18, 1897.

Appeal from district court, Wayne county; W. H. Tedford, Judge.

This is a proceeding to obtain a construction of the will of Joseph Close, deceased. The trial court held that a certain legacy to W. T. Close was specific, and had been adeemed before the testator's death. The legatee appeals. Affirmed.Freeland & Evans, for appellant.

Miles & Steele, for appellee.

DEEMER, J.

The fourth clause of the will is as follows: “I give, will, and bequeath unto my son William Thomas Close the sum of one thousand dollars, to be paid by deducting the same from the amount he owes me, as evidenced by notes I hold on him.” In the third clause he gave a granddaughter $1,000 in bank stock, as well as some real estate; in the fifth, to a son, a certain 40 acres of real estate; in the sixth, a certain 40 acres of real estate to a daughter; in the seventh, eighth, and ninth, $1,000 to each of three daughters; and in the tenth he gave the residue of his estate to his sons and daughters and granddaughter, share and share alike. At the time of the execution of the will the testator held a note for $700 executed by W. T. and J. F. Close jointly, and a note for $300 executed by W. T. Close individually. Shortly before his death the deceased surrendered these notes to his son W. T. Close. Appellant contends that the will did not take effect until the death of the testator, and that the legacy to W. T. Close is not specific, but demonstrative, and that he is entitled to $1,000 from the general estate of his father; while, on the other hand, appellee insists that the legacy is specific, and that it was adeemed by the testator before his death.

“A legacy is said to be general when it is not answered by any particular portion of, or article belonging to, the estate, the delivery of which will alone fulfill the intent of the testator; and when it is so answered it is said to be a specific legacy, because it consists of some specific thing belonging to the estate, which is by the legacy intended to be transferred in specie to the legatee.” Smith v. McKitterick, 51 Iowa, 548, 2 N. W. 390. See, also, Evans v. Hunter, 86 Iowa, 416, 53 N. W. 277. Whether a legacy is specific or general depends on the intention of the testator, to be derived from the language used in the bequest, construed in the light of all the provisions of the will. Davis v. Crandall, 101 N. Y. 311, 4 N. E. 721. If the intent is to have it paid without reference to the fund upon which it is primarily a charge, it is general; but when it is to be paid out of a particular fund, and not otherwise, it is specific. Stevens v. Fisher, 144 Mass. 114, 10 N. E. 803. Applying these rules to the case at bar, it is clear, we think, that the legacy was specific; for the $1,000 bequeathed to W. T. Close was to be satisfied by deducting the same from the amount of the notes the testator then held against him. It was not intended that he should be paid $1,000 out of the general estate, and without reference to the notes upon which it was made a charge. The other provisions of the will tend to strengthen this conclusion; for it is evident that the testator intended to bequeath to each of his children $1,000, or its equivalent, and thus place them practically upon an equality. To hold that W. T. Close should...