In re Schmitz' Estate
| Decision Date | 05 May 1942 |
| Docket Number | 45808. |
| Citation | 3 N.W.2d 512,231 Iowa 1178 |
| Parties | In re SCHMITZ' ESTATE. JENNINGS et al. v. SOCIETY OF THE DIVINE WORD. |
| Court | Iowa Supreme Court |
Dan J. Buckley, of Harlan, for appellant.
Victor E. Spittler, of Omaha, Neb., and G. O. Hurley and J. J Jennings, both of Harlan, for appellees.
The administrator de bonis non of the estate of William Schmitz filed, in the probate proceedings, an application for the construction of decedent's will. The trial court, upon presentation of this matter, found against the contentions of the Society of the Divine Word, who was a beneficiary named in the will and who had filed a resistance to the administrator's application to have the will construed in keeping with his interpretation. The Society of the Divine Word has appealed.
The will which was construed is hereinafter set out:
The trial court found and held: (1) That clause two of the will created a bequest in favor of the appellant in the sum of $5,000 but that said bequest was not directly or expressly charged against any specific property owned by the testator; (2) that said legacy was a charge solely against the residuary legacies of William Schmitz, John Schmitz, Tony Schmitz, Joseph Schmitz, Henry Schmitz and Marie Schmitz Hargarten in the respective sums stated in clause two of the will; (3) that the testator intended that said bequest should be paid solely from the residuary legacies of the above named children and that he did not intend to create any personal obligation against the children or any of them above and beyond such sum or sums as they might receive from their residuary legacies; (4) that under the terms of said clause two the residuary legacy of William Schmitz is subject to the charge of $3,000 and the residuary legacies of John Schmitz, Tony Schmitz, Joseph Schmitz, Henry Schmitz and Marie Schmitz Hargarten are subject to a charge of $400 each; (5) that the testator intended to cancel and forgive the note of his daughter, Anna Schmitz Langenfeld, held by the decedent at the time of his death; (6) that from the evidence presented the court found that whenever a son was married the testator sold real estate to him at the price of $100 per acre and at the same time credited the son with a gift of $6,000 to apply thereon; (7) that all of testator's sons were married at the time of the execution of decedent's will and had received a credit against the real estate conveyed to them of $6,000, except William Schmitz; (8) that it was the intention of the testator to provide for his son William Schmitz, in his will in the same manner as he had provided for all of the other sons prior to the execution of the will; (9) that it was the intention of the testator to make a special devise of the real estate referred to in clause three of the will to William Schmitz and Marie Schmitz Hargarten, share and share alike; (10) that from the evidence before the court it is found that the testator intended to charge the specific devise of the real estate referred to in clause three of the will with the sum of $100 per acre, less a credit to William Schmitz's proportionate share of the charge in the sum of $6,000, and that under the terms of the will William Schmitz and Marie Schmitz Hargarten take the real estate charged with the net sum of $10,000 and that it was the intention of the testator that such sum should be paid by William Schmitz and Marie Schmitz Hargarten into the hands of the executor; (11) that the testator intended to bequeath all the residue of his estate to all of his children named in the will share and share alike.
It is the contention of the appellant that the decision and decree of the trial court was wrong in holding (1) that the bequest under clause two of the will was not chargeable against the specific devise to William Schmitz and Marie Hargarten; and in holding that the bequest to appellant was payable solely out of the residue; and in further holding that the devisees who accepted benefits under the will were not personally obligated to pay the bequest of appellant; (2) that the court was wrong in allowing a credit of $6,000 on the amount due from William Schmitz by reason of clause three, because the will is clear, unambiguous and makes no provision for the reduction of the charge on the land devised, and for the further reason that the evidence upon which this construction is found was illegally considered and, the evidence does not sustain the conclusion of the court, in any event.
It will be observed that there has been no appeal on the part of any of the interested parties from the holding of the court that clause two of the will created a bequest in favor of the appellant. However, as previously stated, the appellant contends that the trial court was in error in holding that under clause two of the will, the specific devise to William Schmitz and Marie Hargarten, was not chargeable with...
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Jennings v. Soc'y of the Divine Word (In re Schmitz' Estate), 45808.
...231 Iowa 11783 N.W.2d 512In re SCHMITZ' ESTATE.JENNINGS et al.v.SOCIETY OF THE DIVINE WORD.No. 45808.Supreme Court of Iowa.May 5, Appeal from District Court, Shelby County; H. J. Mantz, Judge. Application was filed in probate for construction of will. Beneficiary named in bequest appeals fr......