In re Estate of Hall

• Decision Date: 08 January 1907
• Citation: 110 N.W. 148,132 Iowa 664
• Parties: IN RE ESTATE OF BENJAMIN T. HALL, Deceased, W. S. HALL, Executor, Appellee, v. NORMAN HALL, Legatee, Appellant
• Court: Iowa Supreme Court

110 N.W. 148

132 Iowa 664

IN RE ESTATE OF BENJAMIN T. HALL, Deceased, W. S. HALL, Executor, Appellee, v. NORMAN HALL, Legatee, Appellant

Supreme Court of Iowa, Des Moines

January 8, 1907

Appeal from Linn District Court.--HON. WM. G. THOMPSON, Judge.

THIS is a suit for the construction of the will of Benjamin T. Hall deceased. The trial court ruled that Norman Hall took nothing under the will, and he appeals.--Reversed and remanded.

Reversed and remanded.

Voris & Haas, for appellant.

James E. Bromwell, for appellee.

OPINION

DEEMER, J.

The material parts of the will now before us for construction read as follows:

2nd. I give and devise to the heirs (children) of my deceased son Warren, the north half of the timber tract situated in the southeast quarter of the southwest quarter of section 28 township 86, range 6, in Linn county, Iowa, or proceeds of sale of said tract as they and my said executor may mutually agree.

3rd. I give, devise and bequeath to my son, Norman, the south half of said timber tract mentioned in Number Two as being situated in 28-86-6, Linn Co., Iowa, to have and to hold unto himself his heirs and assigns forever.

4th. I give and devise unto my sons, Isaac, Norman, Orin and Harmon, each an equal share in and to all the property, real and personal, of which I may die possessed, after the bequests hereinbefore and hereinafter mentioned, together with all debts and expenses, shall have been paid or set off, it being understood under this head that in the case of Norman the land devised him under Number Three above, is to be considered in the whole or aggregate of property to be equally, as to value, divided among the four legatees, he to have and to hold said land in any case, even though it be more than one-fourth of all property mentioned under this head, and should it be less than one-fourth, then balance is to be apportioned him by my said executor who is also to make all divisions under this head.

These are clear and unambiguous; and the questions arising grow out of transactions occurring after the execution of the will. It appears that thereafter, and before the death of the testator, he executed a deed to Norman Hall for the land devised by the third paragraph of the will, and took a receipt from him, Norman, for $ 625 as having received that much from his (Benjamin's) estate, on account of the land. The deed was taken to the recorder, but he would not file it for record because not acknowledged. The deed was returned to be corrected, and testator then changed his mind and concluded to deed the land to Margaret, wife of Norman, saying that he "would know then that Norman would have a home." The deed to Norman was then destroyed and the receipt given by him, Norman, was at testator's request returned and destroyed. Testator thereupon deeded the land by warranty deed to Margaret I. Hall for the express consideration of $ 625. This deed was executed December 25, 1901, and filed for record February 4, 1902. Testator died September 26, 1903. Norman Hall and his wife have been in possession of the land since the execution of the deed to Margaret. There is testimony tending to show that testator intended this land to be charged to Norman's share of the estate; but no showing that either Margaret accepted it as such or that Norman agreed that it should be so treated.

The question presented is: Is Norman entitled to anything under the fourth clause of the will? He receives nothing under the third for the reason that the land was conveyed by the testator before his death to his (Norman's) wife. It is not a case for application of the doctrine of advancement to one of the heirs, for the reason that it is not a case of intestacy. Gilmore v. Jenkins, 129 Iowa 686, 106 N.W. 193; In re Lyon, 70 Iowa 375, 30 N.W. 642; McCormick v. Hanks, 105 Iowa 639, 75 N.W. 494; Spaan v. Anderson, 115 Iowa 121, 88 N.W. 200.

The only theory upon which the ruling of the trial court can be sustained is that by the deed to Margaret there was an ademption or satisfaction of the devise. Defendant's counsel contend that the doctrine of ademption does not apply to real estate; and that, if it does, it has no application where the conveyance is to some one other than the devisee no matter how close the relationship. The doctrine of ademption, strictly speaking, applies only to personal property or to legacies; and a conveyance by a testator of real estate which he had already devised works a revocation rather than an ademption. Hattersley v. Bissett, 51 N.J.Eq. 597 (29 A. 187, 40 Am. St. Rep. 532). But it seems there may be a satisfaction as distinguished from an ademption of legacies in order that...