In re Newcomb's Will
Citation | 67 N.W. 587,98 Iowa 175 |
Parties | IN RE NEWCOMB'S WILL. |
Decision Date | 14 May 1896 |
Court | United States State Supreme Court of Iowa |
OPINION TEXT STARTS HERE
Appeal from district court, Scott county; C. M. Waterman, Judge.
Patience V. Newcomb died testate August 20, 1891. Her will consists of the original and three codicils. The second and third clauses of the will give to the First Presbyterian Church of Davenport, for specified purposes, $3,000. The fourth clause, as modified by a codicil, gives to eight benevolent societies the sum of $6,500. The fifth clause provides for the purchase of a scholarship in the Northwestern Theological Seminary of Chicago at a cost of $3,000. The sixth clause, as modified by a codicil, provides for the purchase of two scholarships in the Parsons College at Fairfield, at a cost of $4,000. The bequests to the benevolent societies and the three scholarships are to be paid from the sales of real estate. The eighth clause bequeaths the sum of $64,000 to seven persons, to be paid from the avails of notes and mortgages one year after her decease. The tenth, eleventh, and twelfth clauses, as modified by a codicil, bequeath the sum of $10,850 to different persons, to be paid out of the avails of notes and mortgages as soon after her decease as possible. The following is the fourteenth clause of the original will and the fifth clause of the original codicil: The following is the residuary clause of the will: The last clause of the will, after designating the executors, contains this provision: “And I hereby authorize and empower my executors, in their discretion, to make all sales of personal property or real estate necessary or proper to carry out the purposes and instructions of this, my ‘last will and testament,’ and to execute and deliver good and sufficient deed or deeds thereof or other instruments of conveyance.” On the 3d day of November, 1893, the executors filed their second report, showing that all claims against the estate had been paid or adjusted; that the real estate, except a small part, had been sold, and the proceeds ready for distribution. It also appears from their report that the assets in their hands, exclusive of the proceeds of the real estate, are not sufficient to pay in full the bequests not directed to be paid from the real estate. They further say that they are informed and believe they should pay the bequests from the proceeds of the real estate other than those directed to be so paid in the will; but for greater certainty they ask the court to construe the will in this particular. They further state that George W. Fitch, a devisee in the will, makes the claim that under its provisions he is entitled to a fifth share in the residuary estate, and they ask the court to also construe the will in this particular. There are other questions, not important to be here noticed. The district court, upon the two propositions, made the following order: From these orders George W. Fitch appealed. Affirmed.E. M. Sharon, for appellant.
W. C. Putnam, for appellees.
1. It will be well, at the outset, to state some recognized rules of construction as applied to wills. The personal estate is the only one liable for the payment of legacies, unless they are expressly or by necessary implication made a charge on real estate. 13 Am. & Eng. Enc. Law, 110; Wright v. Denn, 10 Wheat. 204. A direction that the real estate shall be sold, and the proceeds form or be considered a part of the residuary personal estate of the testator, subjects the real estate to all charges affecting the personal estate. Watk. Wills, 292; Kidney v. Coussmaker, 1 Ves. Jr. 436. If legacies are given generally, and the residue of the real and personal estate is afterwards given in one mass, the legacies are a charge on the residuary...
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