In re Daniels' Estate

• Decision Date: 18 October 1921
• Docket Number: 34011
• Citation: 184 N.W. 647,192 Iowa 326
• Parties: IN RE ESTATE OF HARRIETTE S. DANIELS. v. CHARLES L. NYE et al., Appellees MARY REYNOLDS ELY et al., Appellants,
• Court: Iowa Supreme Court

184 N.W. 647

192 Iowa 326

IN RE ESTATE OF HARRIETTE S. DANIELS.

MARY REYNOLDS ELY et al., Appellants, v. CHARLES L. NYE et al., Appellees

No. 34011

Supreme Court of Iowa, Des Moines

October 18, 1921

Appeal from Linn District Court.--F. F. DAWLEY, Judge.

ACTION brought by the executors of her estate for the construction of the will of Harriette S. Daniels, who died October 24 1919. A full statement appears in the opinion.

Affirmed.

Trewin Simmons & Trewin, for appellants.

Luberger & Lenihan, for appellees.

STEVENS J. EVANS, C. J., ARTHUR and FAVILLE, JJ., concur.

OPINION

STEVENS, J.

This appeal involves the construction of the will and several codicils of Harriette S. Daniels, deceased, the material paragraphs of which are as follows:

Items 3, 4, 5, and 7 of the will:

"Item 3. I give, devise and bequeath unto my executors, in trust, for my sister, Lydia B. Ely, of Brookline, Mass., in token of my love and affection, and in recognition of her kindness to me in times past, the sum of five thousand dollars ($ 5,000), to be invested as my executors shall see fit, the income of which investment I direct them to pay to my said sister during her lifetime, and upon her decease, it is my will and I so direct, that my said executors shall pay the principal of this bequest, five thousand dollars ($ 5,000), to Mary E. Page, daughter of Caroline A. Page, and Mary Reynolds Ely and Lydia B. Ely, daughters of Elisha D. Ely, share and share alike.

"Item 4. I give, devise and bequeath unto my niece, Mrs. Caroline A. Page, daughter of my sister, Lydia B. Ely, of Brookline, Mass., aforesaid, the sum of five thousand dollars ($ 5,000).

"Item 5. I give, devise and bequeath unto Miss Mary E. Page, daughter of said Mrs. Caroline A. Page, of Brookline, Mass., the sum of five thousand dollars ($ 5,000).

"Item 7. I give, devise and bequeath unto Mary Reynolds Ely and Lydia B. Ely, daughters of my said nephew, Elisha D. Ely, of Canton, Ohio, the sum of five thousand dollars ($ 5,000) each."

Paragraphs 2 and 3 of the third codicil:

"Second. I hereby cancel and revoke Item 3 of my said last will and testament, and in lieu thereof I hereby give, devise and bequeath unto my executors in trust for my sister, Lydia B. Ely, of Brookline, Massachusetts, in token of my love and affection, and in recognition of her kindness to me in times past, the sum of five thousand ($ 5,000) dollars, to be invested as my executors shall see fit, the income of which investment I direct them to pay to my said sister during her lifetime, and upon her decease it is my will, and I so direct that my said executors in trust shall pay the principal of this bequest, five thousand ($ 5,000) dollars to Mary Reynolds Ely and Lydia B. Ely, daughters of Elisha D. Ely, share and share alike.

"Third. I hereby cancel and revoke Item 5 of my said last will and testament, and in lieu thereof I hereby give, devise, and bequeath unto my executors in trust, for Caroline A. Page, daughter of my sister, Lydia B. Ely, of Brookline, Massachusetts, the sum of five thousand ($ 5,000) dollars to be invested as my executors shall see fit, the income of which investment I direct them to pay to the said Caroline A. Page during her lifetime, and upon her decease it is my will, and I so direct, that my executors shall pay the principal of this bequest, five thousand ($ 5,000) dollars to Mary Reynolds Ely and Lydia B. Ely, daughters of Elisha D. Ely, share and share alike."

Items 2, 3, and 4 of the fourth codicil:

"Item. II. I hereby revoke and cancel 'Item 3' of my said will and in lieu thereof, I now give, devise and bequeath to Mary Reynolds Ely and Lydia B. Ely, daughters of Elisha D. Ely, the said sum of five thousand ($ 5,000) dollars, share and share alike in addition to what I may have devised to them in my said will or codicils thereto.

"Item III. I hereby revoke and cancel 'Item 4' of my said will and in lieu thereof, I now give, devise and bequeath the five thousand ($ 5,000) dollars therein devised to my niece, Mrs. Caroline A. Page, to the above named Mary Reynolds Ely and Lydia B. Ely, share and share alike, in addition to what I may have devised to them in my said will or codicils thereto.

"Item IV. I hereby revoke and cancel 'Item 5' of my said will wherein I devised unto Mary E. Page five thousand ($ 5,000) dollars and now devise and bequeath the sum of five thousand ($ 5,000) dollars to the said Mary Reynolds Ely and Lydia B. Ely, share and share alike, in addition to what I may have devised to them in my said will or the codicils thereto."

Item 14 of the fifth codicil:

"Item 14. I hereby revoke and cancel Item 2 of my second codicil to my will of date June 30, 1906, which said codicil bears date of July 21, 1914, and which codicil revokes and cancels Item 3 of my said will, and in lieu thereof I now give, devise and bequeath to Mary Reynolds Ely, daughter of Elisha D. Ely, the said sum of five thousand dollars ($ 5,000) this bequest being in addition to what I may have heretofore devised to her in my said will, or any codicil thereto."

Perhaps a brief restatement of the material provisions of the several instruments requiring our consideration, or throwing light upon the intention of testatrix, will enable us to make somewhat clearer the points at issue. First, as already shown, the will, among other things, makes three bequests of $ 5,000 each, as follows: $ 5,000 to Mary E. Page, Mary Reynolds Ely, and Lydia B. Ely, share and share alike, subject to the payment of the incomes therefrom during her life to Lydia B. Ely, of Brookline, Massachusetts, sister of testatrix, $ 5,000 to Mrs. Caroline A. Page, also of Brookline, Massachusetts, daughter of Lydia B. Ely, and $ 5,000 to Miss Mary E. Page, daughter of Mrs. Caroline A. Page; that, by Paragraph 2 of the third codicil, testatrix revoked the bequest of $ 5,000 to Mary E. Page, Mary Reynolds Ely, and Lydia B. Ely, and bequeathed $ 5,000, share and share alike, to Mary Reynolds Ely and Lydia B. Ely, nieces, subject to the payment of the income therefrom, during her life, to her sister Lydia B. Ely, as before; that, by Paragraph 3 of the third codicil, testatrix revoked the bequest of $ 5,000 to Mary E. Page, daughter of Caroline A. Page, and bequeathed $ 5,000 to Mary Reynolds Ely and Lydia B. Ely, subject to the payment of the income therefrom to Caroline A. Page, daughter of Lydia B. Ely, sister of testatrix, during her life; that, by Paragraph 3 of the fourth codicil, testatrix again, in terms, revoked the bequest of $ 5,000 to Mary E. Page, Mary Reynolds Ely, and Lydia B. Ely, and bequeathed $ 5,000 absolutely, share and share alike, to Mary Reynolds Ely and Lydia B. Ely; that, by Paragraph 3 of the fourth codicil, testatrix revoked the bequest of $ 5,000 to Mrs. Caroline A. Page, and bequeathed $ 5,000 absolutely to Mary Reynolds Ely and Lydia B. Ely, share and share alike; that, by Paragraph 4 of the fourth codicil, testatrix revoked the bequest of $ 5,000 to Mary E. Page, daughter of Mrs. Caroline A. Page, and bequeathed $ 5,000 to Mary Reynolds Ely and Lydia B. Ely, share and share alike; that, by Paragraph 14 of the fifth codicil, testatrix revoked Paragraph 2 of the fourth codicil, and gave $ 5,000 absolutely to Mary Reynolds Ely. Thus it appears that Paragraphs 3 and 5 of the original will were, in terms, revoked both by the third and fourth codicils, each of which gave Mary Reynolds Ely and Lydia B. Ely two sums of $ 2,500 each, or, in the aggregate, $ 5,000.

The only controversy between the parties is as to what effect, if any, shall be given to Paragraphs 2 and 3 of the third codicil. The court below found that neither of appellants--that is, Mary Reynolds Ely or Lydia B. Ely (now Horner)--took anything by Paragraphs 2 or 3 of the third codicil; that, by the fourteenth paragraph of the fifth codicil, Mary Reynolds is entitled to $ 5,000; that, by Paragraph 3 of the fourth codicil, each of appellants is entitled to $ 2,500, and also, by Paragraph 2 of the fourth codicil, to $ 2,500 each: that is, that Lydia B. Ely Horner is entitled, in the aggregate, to $ 5,000 in addition to the bequest made to her in Paragraph 7 of the will, and Mary Reynolds Ely to $ 10,000 in addition to the bequest made to her in the same paragraph thereof.

Looking further to the provisions of the third and fourth codicils it will be observed that Paragraph 2 of the third codicil is identical with Paragraph 3 of the original, except that the former eliminates Mary E. Page from participation in the $ 5,000...