In re Flannery's Estate
| Decision Date | 17 December 1935 |
| Docket Number | 43153. |
| Citation | 264 N.W. 68,221 Iowa 265 |
| Parties | In re FLANNERY'S ESTATE. |
| Court | Iowa Supreme Court |
Appeal from District Court, Johnson County; H. D. Evans, Judge.
This is an action or proceeding originally commenced in probate by the executors of the estate of John Flannery, deceased, to establish a retainer and offset against property devised and bequeathed unto William Meade, for the purpose of paying certain notes owing said estate by said beneficiary. By agreement, the cause was tried as in equity. Decree for executors, and William Meade appeals.
Modified and affirmed.
Wallace & Claypool, of Williamsburg, R. G. Popham, of Marengo, and Paul Toomey, of Iowa City, for appellant William Meade.
J. M Otto, and Messer & Nolan, all of Iowa City, for appellees Wm P. Burns and Mary C. Donohoe, executors.
John Flannery died testate, a resident of Johnson county, Iowa, on February 23, 1934. His will and codicil were duly admitted to probate on March 5, 1934, and on the same date the parties named therein were duly appointed and qualified as executors. The original will was executed April 20, 1933, and the codicil October 28, 1933. For the purposes of this case, it is only necessary to set out certain specific paragraphs of said will. Testator first provides for the payment of his debts and funeral expenses. Then follow fourteen specific bequests to certain named devisees and legatees. Paragraph 16 provides that the money bequests are to be paid out of the testator's moneys and credits and the proceeds of land situated in Iowa county, Iowa, and that real estate specifically devised shall not be disturbed for the purpose of paying said money bequests; and in the event that there should not be sufficient moneys and credits on hand to pay said money bequests in full, that such money bequests shall be reduced pro rata accordingly. Paragraph 17 is a residuary clause naming certain nephews and nieces some twenty-six in all, as his residuary devisees and legatees, some of whom had already received specific bequests or devises.
This controversy centers around paragraphs 10, 11, and 18 of the original will as changed and modified by the codicil and are in the following language:
The codicil, omitting the formal parts, is as follows:
" First: The Eleventh Paragraph of my will I do hereby cancel and annul, and in lieu thereof I do hereby will and devise as follows:
Eleventh: My home property, being the lot and dwelling known as 414 South Dubuque Street, Iowa City, Iowa, and the legal description thereof being the same as that devised to me under the will of my sister, Rebecca Flannery, I do hereby give, devise and bequeath unto my niece, Mary C. Donohoe, to be hers absolutely and forever. I do also hereby give, devise and bequeath to my said niece, Mary C. Donohoe, the sum of One Thousand ($1,000.00) Dollars, and to my niece, Mae Burns, I do hereby give, devise and bequeath the sum of One Thousand ($1,000.00) Dollars.
Second: I do hereby cancel and annul the Eighteenth Paragraph of my said Last Will and Testament, and in lieu thereof I do hereby devise as follows:
The estate was valued by the inheritance tax appraisers at $108,643.75. Indebtedness against the estate was estimated at $5,000. The record shows that William Meade was indebted to the estate on two promissory notes in the total sum of $9,926.66, together with interest.
On November 8, 1934, the executors filed what is designated as " application for order," and for cause of action against William Meade alleged in substance that they are the executors of the estate; that by the terms and provisions of the will, certain real estate (describing it, being the real estate described in paragraph 10 of the will), together with the legacy of $9,000, was, subject to certain conditions and provisions, devised and bequeathed to William Meade; that at the time of the death of said testator, said William Meade was indebted to the estate on two promissory notes (describing them) in the total sum of $9,926.66 with interest thereon at 5 per cent. from November 1, 1934; that the amount which said William Meade would ultimately receive from the estate of the testator as one of the legatees would be wholly inadequate to pay the full amount of said indebtedness after deducting and retaining the $9,000 bequest made to said Meade; that said William Meade had no other means with which to pay said indebtedness except as the same might be retained or offset and deducted from the devise and bequest contained in said will; and that in order to collect the indebtedness of said William Meade to the estate it was necessary to sell the real estate described, and apply the proceeds of said sale, together with the $9,000 bequest and any sum due and payable to him as residuary legatee, on said indebtedness due and owing the estate of William Meade, and the inheritance tax due and owing the state of Iowa. Said executors pray for an order authorizing and empowering them to sell said real estate and to apply the proceeds accordingly, including the inheritance tax, and payment of costs of procuring the order and all costs of giving such notice of sale and of the order under the application, together with statutory attorneys' fees on each of said notes as therein provided, and for such other and further orders in connection with the application as to the court might seem just and proper. This application is signed by the attorneys for the executors and duly verified. Copies of the notes were attached as exhibits and the notes provide for attorneys' fees.
In answer to this, William Meade admitted that the applicants were the executors, admitted the devise and bequest contained in paragraph 10 of the will, admitted the execution of the notes, and denied generally all other allegations of the application. The court found for the executors and against the said William Meade and that William Meade was indebted to said executors of the estate and to the estate on said notes in the sum of $9,926.66, with interest at 5 per cent. per annum, payable annually, from the 1st day of November, 1934 and for the costs of this proceeding, including statutory attorneys' fees to be computed upon the amount of the indebtedness as evidenced by said notes; that the real estate described and contained in paragraph 10 of said will was conditionally devised to said William Meade, and that the title to said real estate was not and has not vested in said William Meade; that said William Meade failed, neglected, and refused to pay the obligation owing by him to said decedent and to his estate; and that by reason of the insolvency of said William Meade and other reasons as shown by the evidence, there was no means or method by which said estate could enforce payment of said obligation, except by a sale of the land referred to. The court then ordered sale of said real estate, and that the proceeds thereof, together with the specific legacies of William Meade, be subjected to the payment of the obligations due the estate. The executors were specifically ordered to convert said property into cash, and said real estate was ordered sold and sufficient amount of the total proceeds of the real estate and legacies retained and appropriated to the satisfaction of said indebtedness and costs, including statutory attorneys' fees and...
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