Evans v. Hunter

• Decision Date: 18 October 1892
• Citation: 53 N.W. 277,86 Iowa 413
• Parties: EVANS v. HUNTER.
• Court: Iowa Supreme Court

86 Iowa 413

53 N.W. 277

EVANS

v.HUNTER.

Supreme Court of Iowa.

Oct. 18, 1892.

Appeal from district court, Jackson county; WILLIAM F. BRANNAN, Judge.

Action in equity for the interpretation of a will. From a decree in favor of plaintiff, the defendant, Senna A. Hunter, appeals.D. A. Wynkoop, for appellant.

Keck & House, for appellee.

ROBINSON, C. J.

On the 15th day of April, 1885, George Roberts executed a will. On the 20th day of November he died, and the will was duly proven in the proper court. The plaintiff is the executor named in the will, and seeks to have interpreted two of its paragraphs, which are as follows: “(1) I give and bequeath my daughter Senna Hunter four thousand dollars in United States government bonds, to be delivered to her, if alive, at my death; if not, to her children; and, if she has none, to be equally divided between my children, or theirs, if they are deceased at my death. (2) To Mary Dawes, my eldest daughter, I give and bequeath one thousand dollars in United States government bonds, and five hundred dollars in cash, and, if paid before my decease, it is to be in full satisfaction of this bequest of $500.”

The plaintiff contends that the legacies to Mrs. Hunter and Mrs. Dawes are general, and he avers that he has offered and is now ready to pay the former $4,000, and the latter $1,500, in full of the amounts to which they are entitled under the will. The testator, at death, left United States bonds to the amount of $5,000; and appellant contends that the legacies of bonds are specific, and that the legatees are entitled to the respective amounts of bonds due them under the will from those left by the testator. The district court found that the legacies were general, and authorized plaintiff to deliver to each legatee the amount of bonds to which she was entitled under the will, in any bonds of the United States. It will be noticed that the bequest to appellant was of “four thousand dollars in United States government bonds,” without any designation of the source from which they were to be obtained. It is insisted that, as decedent had the amount of bonds required by the will for distribution at the time of his death, it is fair to presume that they were the ones contemplated by the will. It is not shown that he owned any bonds at the time of making the will, but it is possible that he then had them, or that he afterwards obtained them for the purposes of the will. That may be conjectured, but is not shown. Certainly, it is not expressed in the will; and it is the general rule that the intent of the testator must be gathered from the will without the aid of extrinsic evidence. Schouler, Wills, § 567 et seq. It was said by this court in Alden v. Johnson, 63 Iowa, 127, 18 N. W. Rep. 696, that “we can look only to the will itself, guided by the rules of interpretation, in order to determine the intention of the testator, and cannot, for that purpose, resort to other sources to discover it.” “A general legacy is one which does not necessitate delivering any particular thing, or paying money out of any particular portion of the estate. But a specific legacy is the converse of this.” Schouler, Ex'rs, § 461. See, also, Redf. Wills, pt. 2, p. 457.

The question to be determined is whether the requirements of the will can be satisfied only by delivering to the...