In re Thomas' Estate
| Citation | 261 N.W. 622,220 Iowa 50 |
| Decision Date | 21 June 1935 |
| Docket Number | 42948. |
| Parties | In re THOMAS' ESTATE. |
| Court | United States State Supreme Court of Iowa |
Appeal from District Court, Mahaska County; Frank Bechly, Judge.
An application for an order for distribution of property. From an order of the district court directing that the residuary estate be divided equally among the twenty nieces and nephews of testatrix, the applicants appeal.
Modified and affirmed.
McCoy & McCoy and Irving C. Johnson, all of Oskaloosa, for appellants.
Thomas J. Bray, of Oskaloosa, and J. A. Shearer, of Columbus, Ohio for appellees.
Jane P Thomas died on the 24th day of October, 1931, leaving a will and codicil which were duly admitted to probate; and the parties nominated therein were duly appointed and qualified as executors.
The material part of said will (which consisted of twenty-six paragraphs), so far as this matter is concerned, is as follows:
In paragraph 6 certain specific personal property was bequeathed to Mary R. Montgomery (a niece). In paragraph 7 a graphophone, or any similar musical instrument which testatrix may own, together with all records belonging thereto, is bequeathed to John Jay Marmon (a nephew). In paragraph 8 all of decedent's wearing apparel is bequeathed to Mary E. Marmon (a sister). In paragraph 9 three rugs and the dining room chairs are bequeathed to Gertrude Marmon (a niece). In paragraph 10 the hall rack and glass in the front hall are bequeathed to Thomas Marmon (a nephew). In paragraph 11 a single bedstead is bequeathed to Thomas S Montgomery (a nephew). In paragraph 12 certain furniture and bedding are bequeathed to Olonzo M. Montgomery (a nephew). In paragraph 13 a walnut bedstead and bedding, a bureau, and a davenport are bequeathed to S.E. Montgomery (a nephew). In paragraph 14 a brass bed and a rug are bequeathed to Ruth Helen Marmon (a niece). Paragraph 16 provides a trust in the hands of the executors of $2,000, for the benefit of Albert Bryan. In paragraph 17 the sum of $2,000 is bequeathed to Lewis Miller, provided he survives the deceased, and is living at the time the will is admitted to probate. In paragraph 19 the sum of $1,000 is bequeathed to Walter C Stewart, if he survives the deceased. In paragraph 20 the sum of $1,000 is bequeathed to Irvin C. Stewart, if he survives the deceased. In paragraph 21 the executors are directed to divide in kind, as nearly as possible, among the residuary legatees named in the will, all the furniture, beds, bedding, chairs, tables, rugs, and carpets not otherwise specifically disposed of.
" Twenty-second: All the residue and remainder of my property, personal or real, I will, devise and bequeath to the following persons, to wit:
Jacob A. Montgomery
Olonzo M. Montgomery
Thomas S. Montgomery
Simon Eprite Montgomery
Mary R. Montgomery
Gertrude Marmon
Thomas Marmon
John Jay Marmon
to each an equal share, except that Olonzo M. Montgomery shall have a share and a half, that is, he shall have one-half more than anyone of the other persons mentioned in this paragraph, and if any of said persons shall be deceased at the time of the distribution of my residuary estate, then the share otherwise passing to said deceased persons shall go to his or her issue, or if said person shall die leaving no issue, then said share shall go to the survivors among said persons mentioned in this paragraph in the same proportion as first herein directed.
Twenty-sixth In the distribution of my property in this will, I am not unmindful of the fact that I have made no provision for the children of my sister, Delia Downey, but I feel that they and their parents have heretofore received all at my hands that I desire to give them."
This will bears date of the 16th day of February, 1927.
On the 12th day of September, 1931, the deceased executed the following codicil:
" I, * * * do make, publish and declare this the first codicil to my last Will and Testament dated Feb. 16th, 1927, that is to say:
The sixteenth paragraph I desire the amount changed from Two Thousand to Five hundred dollars.
The seventeenth paragraph I desire the amount changed from Two Thousand to One Thousand dollars.
The nineteenth paragraph I desire the amount changed from One Thousand to Five Hundred dollars.
The twenty-second paragraph I desire changed and the following named children of my sister added as residuary legatees and devisees, to wit: Jennie Downey, Grace Landmesser, Roscoe Downey and Orr Downey, it being my intention to divide my estate among all my nieces and nephews. All real estate to be sold and proceeds divided.
The twenty-sixth paragraph shall be omitted entirely as I have in this codicil made provision for my said sister's children.
In all other respects my said original is by me fully ratified and confirmed."
The deceased, through her sister Sarah Montgomery, had six nieces and nephews, five of whom are named in paragraph 22 of the will. A nephew named Jesse W. Montgomery is not named at any place either in the will or codicil. Through another sister, M. Ellen Marmon, deceased had four nieces and nephews, all of whom are named as beneficiaries under the will in paragraph 22 of the will. Through another sister, Delia B. Downey, deceased had five nieces and nephews, all of whom are named in the codicil to the will. Through a brother, W. W. Stewart, the deceased had five nieces and nephews, two of who are beneficiaries under the will, and three of whom are not named in the will, to wit, Emma Stewart, Wayne Stewart, and Myra Stewart.
To summarize: The deceased had twenty nieces and nephews, sixteen of whom are named as beneficiaries under the will; thus omitting four, to wit, Jesse W. Montgomery (Jesse W. Stewart), Emma, Wayne, and Myra Stewart.
It is the contention of the appellees that the clause in the codicil to the will means exactly what it says, and that there is nothing in the will or codicil that requires judicial construction. It is the further contention of the appellees that, under judicial construction, the clause " all my nieces and nephews" could be construed only as meaning all twenty of the nieces and nephews who survive the testatrix. The application under consideration was made by Emma, Wayne, Walter C., Myra, and Ervin Stewart claiming that in the distribution of the property belonging to said estate each of them is entitled to one-twentieth of the property remaining in said estate after the payment of special...
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