In re Freeman's Estate
| Decision Date | 15 February 1910 |
| Citation | 124 N.W. 804,146 Iowa 38 |
| Parties | In re Estate of S. C. FREEMAN |
| Court | Iowa Supreme Court |
Appeal from Taylor District Court.--HON. H. M. TOWNER, Judge.
THE administrator of the estate of S. C. Freeman and all the heirs of the said Freeman filed motions and petitions for the construction of the will of the deceased. The matter was submitted to the district court, sitting as a court of probate, resulting in an order to the effect that a certain paragraph of the will was inoperative and nonenforceable because repugnant to other provisions of the instrument, and that the eleven children of the deceased, or their successors, each took a one-eleventh of the property. The parties who might have taken, under the clause of the will declared to be inoperative, appeal.--Modified and remanded.
Modified and remanded.
Stanley & Stanley, for appellants.
McCoun & Burrell, Wm. M. Jackson, Frank Wisdom, and W. R. Brant, for appellees.
The will of the deceased, so far as material, reads as follows:
Par III. I will and bequeath to my sons, William James Freeman Samuel William Freeman, Valentine Wilson Freeman, Lee Bird Freeman, Frank Leasure Freeman and Benjamin Campbell Freeman, and to my five daughters, Martha Jane Johnson, Caroline Keasling, Emma Farnham, Armitta Hoskinson and Hattie Raff, each the one-eleventh in value of my entire estate, both real and personal; upon the express provisions and conditions stipulated in paragraph IV and V of this will, to wit:
Par. IV. Whereas, my said son, William James Freeman, has had the sum of Fifty Dollars and Forty Cents; my said son, Samuel William Freeman, has had the sum of Eight Hundred Eleven and 21-100 Dollars; my said son, Valentine Wilson Freeman, has had the sum of Eighty-five Dollars and Sixty-Five Cents; my said son, Lee Bird Freeman, has had the sum of Five Hundred Ten and 70-100 dollars; and Benjamin Campbell Freeman has had the sum of Seven Hundred Twenty-One and 80-100 dollars given them by way of advancement, aggregating in all the sum of Two Thousand, One hundred Seventy-Nine dollars and Seventy-five Cents, which has been given my said sons by way of advancement in anticipation of such sons respective shares of my estate. Whereupon it is my will, and I direct, that said aggregate amount of Two Thousand One Hundred and Seventy-Nine Dollars and Seventy-Five Cents be added to my estate at my decease, and that each of my said sons enumerated in this paragraph have one-eleventh of said estate, less the amount theretofore received by him as stated in this paragraph, and that all my daughters named in paragraph three and my said son, Frank Leasure Freeman, each receive one-eleventh of my entire estate as stated after adding the said sum received by way of advancement above enumerated.
Par. V. I further direct and it is my will that the one-eleventh of my estate so given and bequeathed to my said son, William James Freeman, and the one-eleventh given to my said son, Samuel William Freeman be given and distributed to them and each of them as follows, to wit: That they and each of them receive the sum of Twenty-five Dollars per annum of their said share during their natural lives or until they or each of them receives his full one-eleventh of my said estate, as stipulated in this will, and in case they or either of them should become deceased before receiving his full one-eleventh of my said estate as above directed, I will and direct that the remaining unpaid balance belonging to him revert back to my estate and be divided among my remaining heirs living at that time and named in this will.
Par. VI. And I will and request that all my estate, both real, equitable, and personal, of which I may die seized or possessed of be divided among my said heirs as in this will directed, and that said division be made under the direction of the Court in equitable and legal manner as by law directed.
After the execution of the will the testator made and properly executed the following codicil:
In case my son, Frank Leasure Freeman, mentioned in paragraph three of my said will should die previous to my decease, then and in that event, I desire and request and it is my will, that all the property given to him in my said will be given, and I so order, devise and bequeath to his, my said son's wife, Ader Freeman, it being my intention and desire, and I so will, to give unto the said Ader Freeman all the property, rights and benefits willed and bequeathed to my said son, Frank Leasure Freeman in the event that he, my said son, should depart this life previous to my death.
The case was tried on an agreed statement of facts from which we extract the following:
It is admitted that at the time of the execution of said will all of the beneficiaries of said will mentioned in paragraph 3 thereof, were living. It is further admitted that on or about January 1, 1905, one of the beneficiaries named in said paragraph, Samuel William Freeman, died intestate; that at said time he left a surviving widow, America Freeman, and the following named children, to wit: O. J. Freeman, Laura T. Freeman, Willie Freeman, Artie Freeman, Jessie Freeman, Myrtle Freeman, Maggie Freeman, Mary Smith, Mrs. Maud Grayson, Mrs. Grace Walker, B. W. Freeman, and D. G. Freeman. It is further admitted that said Frank Leasure Freeman, named in said paragraph 3 of said will died on the day of December, 1904, and that he left a surviving widow, Ada Freeman, being the said Ada Freeman referred to in the codicil of said will, and left no surviving children. It is further admitted that the said Hattie Raff died on the 1st day of January, 1907, and that she died intestate, and left a surviving husband, A. M. Raff, and the following children, to wit, Lela Raff and Lloyd Raff, both minors; that the said minors are represented herein by their legal guardian, L. L. McGregor. It is further admitted that the other named children of the testator, Samuel C. Freeman, named in said paragraph 5, to wit, William James Freeman, Benjamin C. Freeman, Lee B. Freeman, Valentine W. Freeman, Martha J. Johnson, Caroline Keasling, Emma Farnham, Armitta Hoskinson are now living and appear in this action, and that the heirs or representatives of the said Samuel W. Freeman, Frank L. Freeman, deceased, and Hattie Raff, deceased, are represented, and that all parties herein join in asking a construction of the will. It is further admitted of record that the estate is sufficient after the payment of all debts, charges, and costs to pay to the eleven heirs named in paragraph 3 of said will, if said heirs were to receive equal amounts, about $ 2,000 each.
Upon this record the trial court made the following finding:
The court construes the will to give to the following named parties at this time one-eleventh of the estate of Samuel C. Freeman to the following heirs of Samuel C. Freeman, to wit: O. J. Freeman, Laura T. Freeman, Willie Freeman, Artie Freeman, Jessie Freeman, Myrtle Freeman, Maggie Freeman, Mary Smith, Mrs. Maude G. Grayson, Mrs. Grace Walker, B. W. Freeman, and D. G. Freeman; and one-eleventh to each, William James Freeman, Valentine Wilson Freeman, Lee Bird Freeman, Benjamin C. Freeman, Ada Freeman, Martha J. Johnson, Caroline Keasling, Armitta Hoskinson, and Emma Farnham; and one-eleventh to the children of Hattie Raff, to wit, Lela Raff and Lloyd Raff. In case any of the said heirs are dead it is decreed by the court that their living children shall inherit and receive the share awarded to such deceased heirs, to all of which all the parties at the time duly excepted.
For appellants, it is contended that in this there is error because there is no ambiguity, repugnancy, or conflict in any of the paragraphs of the will, and that if there be any contradiction, paragraph 5, being the last clause, must prevail. It is also insisted that the heirs of Samuel W Freeman, deceased, take nothing through him under the will, for the reason that he died before the testator's demise, and by the express provision of the will his share became a part of the parent estate to be...
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