Howard v. Smith

• Citation: 42 N.W. 585,78 Iowa 73
• Parties: HOWARD et al. v. SMITH et al
• Decision Date: 03 June 1889
• Court: United States State Supreme Court of Iowa

42 N.W. 585

78 Iowa 73

HOWARD et al. v. SMITH et al

Supreme Court of Iowa, Des Moines

June 3, 1889

Decided May, 1889.

Appeal from Marshall District Court.--HON. J. L. STEVENS, Judge.

ACTION to construe a will. Both parties appeal from the decree of the court below.

REVERSED.

Henderson & Hargrave, for plaintiffs.

J. H Bradley, for defendants.

OPINION

BECK, J.

I.

The plaintiffs were a son of the testator, and the assignee of another son, both legatees and devisees under the will. They allege that it is ambiguous and uncertain, and ask that it be interpreted. The defendants are the executor of the will and devisees and legatees named therein. It is in the following language:

"I, Joseph S. Howard, of the town of Liberty county of Marshall, and state of Iowa, being aware of the uncertainty of life, and in failing health, but of sound mind and memory, do make and declare this to be my last will and testament, in manner following, to-wit: First. I hereby give, devise and bequeath unto my wife, Samantha Howard, and my five minor children, named as follows: John J. Howard, Charles B. Howard, Freddie G. Howard, Chelsea L. Howard and Isaac E. Howard, the use and benefits, profits and income from all of my property, both personal and real, including lands, horses, cattle, sheep, hogs and all other property, money or credits owned and kept on said farm, except such as is necessary to pay all of my indebtedness, and that is hereinafter disposed of by me, until the youngest of the above-named children shall become of lawful age. In the event that the said Samantha Howard should marry again, and cease to be my widow, she shall then only be entitled to the use and benefit of one-third of my estate; the remaining two-thirds to still be used for the benefit of the five minor children, as above stated, and that, at the time of her marriage, the said property shall be divided and set apart, as above stated. Should she not marry until the youngest of said children shall become of age, then and at that time the said estate shall be divided as follows: One-third of all my property, both personal and real, to my wife, Samantha Howard, and the remaining two-thirds to be divided equal between all of my children, except that the amount of one thousand dollars shall be deducted from the share of Addison J. Howard, and also the sum of one thousand dollars shall be deducted from the share of the said Alonzo W. Howard, and Marion C. Howard shall have an equal share with the five children above named in this will. Second. I give, devise and bequeath to my son Addison J. Howard five hundred dollars at my death. Third. I give, devise and bequeath to my daughter-in-law Lucretia Howard, wife of Alonzo W. Howard, the sum of five hundred dollars at my death. Fourth. I give and devise to Marion C. Howard the sum of five hundred dollars at my death; and, lastly, I nominate and appoint Henry C. Smith, of Providence township, county of Hardin, and state of Iowa, as executor of this my last will and testament. In witness whereof, I, Joseph S. Howard, to this, my last will and testament, have hereunto set my hand and seal this second day of July, eighteen hundred and eighty-six. (1886.)

"(Signed) JOSEPH S. HOWARD. [Seal.]"

The plaintiffs pray that the will may so be interpreted as to determine the following matters: "(1) What interest said Samantha Howard has in the real, and what in the personal estate of testator. (2) What disposition, if any, testator has made of the fee of his real estate in case said Samantha Howard shall remarry before the youngest of the minor defendants attains his legal majority. (3) What interest plaintiff Marion C. Howard has in the real, and what in the personal, estate of testator. (4) What interest plaintiff George S. Howard, as assignee of Addison J. Howard, has in the real, and what in the personal, estate of testator. (5) What disposition of the sum of two thousand dollars is made, when it shall be deducted from the shares of Addison J. and Alonzo W. Howard. (6) Whether the personal estate of testator is to be kept intact upon the premises where the same now is, and in what manner it is to be controlled and invested during the minority of the five minor defendants. (7) What disposition, if any, has testator made of the fee of his estate? And if it be found...