Ganoe v. Swisher

• Decision Date: 15 October 1940
• Docket Number: 45301.
• Parties: GANOE v. SWISHER et al.
• Court: Iowa Supreme Court

294 N.W. 235

229 Iowa 130

GANOE v. SWISHER et al.

No. 45301.

Supreme Court of Iowa.

October 15, 1940

Appeal from District Court, Dallas County; E. W. Dingwell, Judge.

This is a proceeding in probate whereby Ganoe sought to compel the payment of a mortgage on lands devised to his ward. The answer was that the note had not been filed as a claim against the estate and that the will of the testator did not require that other specifically devised property contribute to the payment of the mortgage debt. The trial court took the views urged in the answer, and the petitioner appeals.

Reversed and remanded.

F. W Ganoe, of Boone, for appellant.

Howe & Howe, of Des Moines, for appellees.

SAGER Justice.

G. W Noland made a will on the 27th day of January, 1923. At that time his wife and five children were living. By this testament he left to his wife a life estate in certain property. The death of the widow removed her from the scene and she will not again be mentioned. There was devised to each of the children specific parcels of real estate, all free from encumbrance.

On December 15, 1934, the testator gave a note of $3,000 to one of his sons securing it by a mortgage on the land devised to William in whose behalf this action was brought. This devisee was mentally incompetent at the time the will was made and remains so. By the terms of the will the son Ray, to whom the mortgage was given, was designated guardian. After his death F. W. Ganoe, plaintiff-appellant herein, was substituted. The executors of the estate of Ray did not file, nor do they intend to, the note as a claim against the estate of the father. Appellant says this is in furtherance of a scheme on the part of the other devisees to make William's devise bear the debt alone. Whether this be true or not is not important because, if they were proceeding within their legal rights, the motive behind their actions is immaterial.

Plaintiff by his application, asks that the executors of the estate of Ray W. Noland be required to file the note as a claim; and that the court order that the devise to William be exonerated pro tanto by compelling the administratrix of the estate of G. W. Noland to pay the note and mortgage out of the general estate. The trial court denied the application. We think this was error. It should be stated that there is substantially no personal property in the estate-scarcely more than sufficient to pay funeral expenses and administration costs.

The question before us is easily stated thus: Where a testator, after making devises of specific parcels of property, later encumbers one parcel, must the latter bear the whole burden; or is he entitled to have the other devisees contribute towards its payment, there being no personal estate, no residuary devises and no intentions expressed in the will with reference thereto?

It would be to no purpose to attempt to analyze the cases from other jurisdictions. Such members of the bar as may be interested are referred to notes to Smith v. Kibbe, 5 A.L.R. 483, at page 488; Fulenwider v. Birmingham Trust & Sav. Co., 72 A.L.R. 702, at page 709; In re Johnson's Estate, 120 A.L.R. 574, at page 577; and current supplements. There is conflict in the decisions of the various jurisdictions but our cases have committed us to the principles contended for by appellant. The case of Sharpless v. Gregg, 45 Iowa 649, is the first of these and is frequently cited as supporting the doctrine of exoneration of specific devises. It is not so in fact because it turns on the warranties on the deeds involved. Toner Ex'r, v. Collins et al., 67 Iowa 369, 25 N.W. 287, 290, 55 Am.Rep. 346, held (on the authority of the Sharpless case) that a claim on a note secured by a mortgage should be paid out of the general estate. We there said: " While the creditor has the right to subject the mortgaged property to the payment of the debt, as between the legatees there is no such right. ...