In re Estate of Strolberg

• Decision Date: 06 May 1921
• Docket Number: 21416
• Citation: 183 N.W. 97,106 Neb. 173
• Parties: IN RE ESTATE OF JOHN STROLBERG. AUGUST STROLBERG, EXECUTOR, APPELLANT, v. EMMA STROLBERG ET AL., APPELLEES
• Court: Nebraska Supreme Court

183 N.W. 97

106 Neb. 173

IN RE ESTATE OF JOHN STROLBERG. AUGUST STROLBERG, EXECUTOR, APPELLANT, v. EMMA STROLBERG ET AL., APPELLEES

No. 21416

Supreme Court of Nebraska

May 6, 1921

APPEAL from the district court for Buffalo county: BRUNO O HOSTETLER, JUDGE. Reversed.

REVERSED.

C. P Anderbery, for appellant.

W. D Oldham, contra.

OPINION

DORSEY, C.

The sole question involved in this appeal is whether or not certain bequests in the last will and testament of John Strolberg, deceased, are chargeable upon his real estate upon deficiency of personal estate with which to pay them. The executor filed his petition for license to sell the real estate for that purpose. The widow, and a minor child and devisee by his guardian ad litem, filed objections on the ground that the real estate was not liable; the trial court dismissed the petition, and the executor appeals.

The will consists of numerous articles, first of which is a direction to pay debts out of the personal estate. Each of the next seven articles of the will contains a bequest to a different branch or foundation of the Swedish Lutheran Church. These bequests, aggregating $ 2,500, are in the following form, differing only as to name and amount: "I give, devise and bequeath to the Augustana College and Theological Seminary, Rock Island, Illinois, the sum of two hundred and fifty dollars ($ 250.00)." Next after the foregoing bequests is the following paragraph: "All the foregoing bequests being special in their nature as above set out and made to the various benevolent and charitable institutions shall be paid out of my personal estate and the executive board or the proper officers of the same who are competent to receive such bequests by my executor who shall take their receipts for the same in full settlement of the various devises so made."

Succeeding articles of the will set forth that the testator had already provided for four of his sons, and that he wished to leave the sum of $ 500 to each of two children of his son Edward, the payment of which he charged as a lien upon 80 acres of land in Kearney county, which he devised in fee to his son John Walter Strolberg, subject to the use of the land by his widow until his said son should attain the age of 21. To his widow he devised and bequeathed certain specific articles of personal property and the life estate in lots in the city of Holdrege constituting his homestead, and also the use, rents and profits of the 80 acres devised to John Walter, together with the use of certain other described city property in Kearney, from all of which real estate she was to receive the income until his said son should attain his majority. The residuary provisions of the will were as follows: In case both his widow and his son John Walter should live until the latter became 21, he devised the residue of his property, both real and personal, not devised in the will, one-fourth to his widow and the remaining three-fourths, in equal shares, to his sons August, Frank, Emil and John Walter. In case either his widow or his son John Walter should die before the latter became 21, he devised the residue aforesaid one-fourth to the survivor of them and one-fourth each to his sons August, Frank and Emil. If either or both of the children of his son Edward should die before his son John Walter became 21, then the legacy of $ 500 should lapse as to each such deceased grandchild and should cease to be a lien upon the land devised to John Walter. His son August was nominated executor.

The will was duly probated and the executor qualified. The money and personal property of the estate, amounting to about $ 1,000, sufficed to pay the debts and expenses of administration, but was not enough to discharge the seven bequests to the various church organizations.

The principles that govern this case are, in substance, that legacies, as a general rule, are payable primarily out of the personal estate of the testator, and that real estate will not be charged with their payment unless the intention to do so is expressly declared or clearly inferable from the dispositions of the will; that the chief criterion is the intention of the testator, which may appear either expressly or by implication from the language and dispositions of the will; that such intention cannot be inferred solely from or shown solely by evidence of circumstances altogether extraneous to the will, nor is such evidence admissible on the question of intent where there is no ambiguity in the will; but where legacies are not expressly charged upon the land and the intention of the testator is not clear, the court may and should, for the purpose of ascertaining the intention, read the will in the light of the circumstances existing when it was made.

The principal facts relied upon as disclosing that intent are, first, the language of the residuary clause in which he devised "all the rest and residue of my property, both personal and real, not hereinbefore devised" to certain persons upon certain contingencies. Counsel for the appellant argue that, as "residue" means that which is left over after the previous dispositions of the will have been carried out, the testator must have meant that his real estate as well as personal property should be looked to for the payment of the legacies; second, that, as shown by testimony introduced by the appellant, the testator never had so large a sum as would be required to pay these legacies for any considerable time; that he was in the habit of keeping his money, as it came in, closely invested, it being customary with him to purchase small rental properties in the city of Kearney. Three of these properties he had acquired before August, 1911, when the will was made, and he purchased five others after that time at prices ranging from $ 320 to $ 700. Counsel deduce from this that, in view of his settled habit of investing in these small properties instead of allowing his money to accumulate, he could not have intended to limit the payment of legacies to money or personal property, of which he did not keep sufficient on hand, but had in mind that these investments should be resorted to and therefore placed them in the residuary provisions of the will.

The testator made but one specific devise of real estate--the 80 acres to his son John Walters, subject to the life use thereof by the widow, and subject also to the specific legacies to his grandchildren. No specific devise of real estate in fee was made to the widow. He gave her only the income until John Walter became of age. All the real estate other than John Walter's 80 acres was part...