Fry v. Fry

Decision Date27 October 1904
Citation125 Iowa 424,101 N.W. 144
PartiesFRY ET AL. v. FRY ET AL.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Johnson County; O. A. Byington, Judge.

This is a contest over some papers purporting to be the last wills and testaments of John Fry, deceased. The first will bears date August 10, 1882. To this is a codicil under date of May 20, 1888. The so-called last will and testament bears date December 26, 1898. It is claimed that this last will revoked all former ones, and that each and every one of these instruments was revoked by the birth of children to the testator after the execution of each paper. The trial court held the wills all valid, and admitted them to probate. Plaintiffs, who are the children and grandchildren of the deceased by his first marriage, and contestants of the wills, appeal. Reversed.M. J. Wade, S. H. Fairall, and J. W. Smith, for appellants.

A. E. Maine, for appellees.

DEEMER, C. J.

The first will undertook to dispose of testator's entire estate, some of it by specific bequests, and other parts by general legacies and devises. The codicil revoked certain specific devises, and proceeded as follows: “I devise and bequeath to the children born to me by my second marriage, all the property of which I may die seized, the same to be equally distributed among them, share and share alike, subject however to the use and benefit of my wife as above provided.” This also had the effect of revoking the bequest of testator's personal property to his wife, Agnes.

The last testament devised to certain grandchildren, heirs of Laura J. Boone, a deceased daughter--

“All the right title and interest which I may own at my death in and to the N. W. quarter of the N. W. quarter of Section 15 in Township 78, North, Range 8 West, of the 5th P. M. being an undivided one third interest thereon, devised by a deed to me from W. A. Boone, subject to the following exceptions, restrictions and limitations, to-wit:--

1st. That none of said devisees shall be entitled to said property, until the youngest of said children, Lala, shall arrive at the age of eighteen years, unless she sooner dies.

2nd. That the respective devisees shall have no right to or in said property as long as there is any debts against the one entitled to the benefits of above devise, and if there be such debts, then the share of the one so indebted shall go to the others not indebted.

Item II. I appoint William Fry and Bruce Patterson to hold said property, until the parties above named are entitled thereto under the above provisions and they or their successors may sell said property, and convey the same without any order of court, and reinvest proceeds as they see best.

Item III. In case of death of said trustees the District Court of Johnson County, Iowa, may appoint their successor or successors, them to have all the power of first named trustee.

Item IV. I revoke any provisions of former will inconsistent with this.

Item V. I appoint Bruce Patterson and William Fry, executors of this will.

Signed Dec. 26th, 1898.”

Testator was twice married. He was wedded to his second wife and present widow in the year 1878, and by her had eight children, each and all of whom survived him. Of these children, Frank was born after the first will was executed, and before the making of the codicil. Four (Earl, Leo, George, and Gerald) were born after the making of the codicil, and before the execution of the last will, and one (Clifford) was born after the execution of the last will, but before testator's death. The contentions made on this appeal are, first, that the last will revoked the former will and codicil, and, second, that the birth of children revoked each and all of them.

Section 3276 of the Code, before its recent amendment, which was after this case was determined, and after the death of the testator, read as follows: “Wills can only be revoked in whole or in part * * * by being canceled or destroyed, by the act or direction of the testator, with the intention of so revoking them, or by the execution of subsequent wills. When done by cancellation the revocation must be witnessed in the same manner as the making of a new will; but the subsequent birth of a legitimate child to the testator, before his death, will operate as a revocation.” It will be noticed that the last will expressly provides that he revokes “any provision of former wills inconsistent with this.” But counsel contend that, under the statute quoted, the execution of the last will ipso facto revoked and canceled the first, with its codicil. Turning again to the statute, it will be observed that wills may be revoked, either in whole or in part, in the manner provided. Whether revoked in whole or in part must depend upon the testator's act and intent as gathered from the instrument of revocation itself. That the testator did not intend to revoke all the provisions of his former will is manifest from the face of the instrument itself. True, he states in this last paper that he makes, publishes, and declares it to be his “last will and testament”; but this is not controlling, and should not be held to revoke his former will, if it is manifest that he did not so intend it. Gordon v. Whitlock, 92 Va. 723, 24 S. E. 342. If this last instrument had been denominated a codicil, as it in effect was, there would be no difficulty with this aspect of the case. But it is the right as well as the duty of the court to arrive at the testator's intent in this regard, and if the two wills, taken together, will prevent partial intestacy, they will be construed as one, in so far as this may reasonably be done. Austin v. Oakes, 117 N. Y. 577, 23 N. E. 193;Price v. Maxwell, 28 Pa. 23. Moreover, where, as here, there is an express disclaimer of a purpose to entirely revoke the former will, courts almost universally construe the two wills together, and give effect to each, in so far as it may be done. Succession of Shaffer, 50 La. Ann. 601, 23 South. 739....

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