In re Caldwell's Estate

• Decision Date: 25 October 1927
• Docket Number: 38161
• Citation: 215 N.W. 615,204 Iowa 606
• Parties: IN RE ESTATE OF HERMAN WASHINGTON CALDWELL. v. CHARRY THERESA CALDWELL, Executrix, Appellee DAVIDSON REALTY COMPANY et al., Appellants,
• Court: Iowa Supreme Court

215 N.W. 615

204 Iowa 606

IN RE ESTATE OF HERMAN WASHINGTON CALDWELL.

DAVIDSON REALTY COMPANY et al., Appellants, v. CHARRY THERESA CALDWELL, Executrix, Appellee

No. 38161

Supreme Court of Iowa, Des Moines

October 25, 1927

Appeal from Woodbury District Court.--A. O. WAKEFIELD, Judge.

This appeal involves the right of certain claimants against the estate of H. W. Caldwell, deceased, to have their claims which were approved by the executrix, and allowed by the court as claims of the third class, paid out of the proceeds of life insurance. The court held that the life insurance was not subject to the payment thereof, and the claimants appeal.

Reversed.

S. G Pickus, Maennel & Gunnell, Henderson, Fribourg, Hatfield & Fribourg, and Tomlinson & Tomlinson, for appellants.

Milchrist Jepson, Marshall & Jepson, for appellee.

STEVENS, J. EVANS, C. J., and FAVILLE, KINDIG, and WAGNER, JJ., concur.

OPINION

STEVENS, J.

The questions presented for review arise upon exceptions of appellants to the final report of the executrix. Before considering the issues thus raised, we will dispose of the motion filed by appellee to dismiss the appeal. The executrix alone was served with notice of the appeal. It now appears that she has made final distribution of the estate to the legatees named in the will, and been discharged as executrix. This was all done after the order and judgment appealed from was entered. It is true that the legatees to whom distribution has been made have a monetary interest in the result of this appeal, but they are not now, and never, in fact, have been, parties to the record. The service of notice upon the executrix was all that was necessary. As stated, the issues tried were presented by the exceptions and objections of appellants to the final report, and any distribution made of the personal property by the executrix is subject to the result of this appeal. The legatees are not parties in such sense that it was necessary that they be served with notice of the appeal. The motion is overruled.

The will of the decedent in Item 1 directed that all just and lawful debts of the testator and the expenses of his last sickness and burial be paid as speedily after his death as practicable. This item is followed by others, in which a number of specific bequests not in any way in controversy in this proceeding are made. Item 7 of the will, which is the one in controversy, is as follows:

"Item VII. Subject to all the foregoing, and to the payment of the costs and expenses of administration of my estate, I do hereby give, devise and bequeath all the rest, residue and remainder of my estate, whether real, personal, or mixed, and wheresoever situate (including the proceeds of all policies of life insurance and accident insurance, which are, or at the time of my death are payable to my executors, administrators, or to my estate), unto the First National Bank of Sioux City, Woodbury County, Iowa, as trustee * * *."

The claims of appellants were filed, and allowed by the executrix, and found by the court to be just, but the assets of the estate, outside of the life insurance, were insufficient to pay them. The court held that the proceeds of the life insurance are not subject to, or liable for, the payment of testator's debts, and overruled the exceptions and objections of appellants to the final report. This presents the only question before us for decision.

Two propositions are relied upon by appellee for affirmance. They are (a) that the will in question does not attempt to charge the debts of the testator upon the proceeds of insurance, and (b) that the avails of life insurance payable to the estate of the deceased are not chargeable with the payment of his debts. The contention of appellant, of course, is that neither of the foregoing propositions are true. It has been held in other jurisdictions, in which the right of the insured to make testamentary disposition of insurance is recognized, that the intention to so dispose of it must be clearly expressed in the instrument. Chrisman v. Chrisman, 141 Tenn. 424 (210 S.W. 783); Cooper v. Wright, 110 Tenn. 214 (75 S.W. 1049); Blouin v. Phaneuf, 81 Me. 176 (16 A. 540).

The devise of the proceeds of the testator's policies of life insurance is specifically made subject to the prior provisions of the will. This, it seems to us, evinces a clear purpose on his part to provide for the payment of his debts out of the proceeds of his life insurance. The first item of the will related to the payment...