Johnson v. McDowell
| Decision Date | 08 February 1912 |
| Citation | 134 N.W. 419,154 Iowa 38 |
| Parties | M. B. JOHNSON v. ELLA MCDOWELL, JAS. and MELVIN WINKLEMAN, Appellants |
| Court | Iowa Supreme Court |
Appeal from Mahaska District Court.--HON. B. W. PRESTON, Judge.
THE plaintiff obtained judgment for $ 100 against Ella McDowell October 21, 1901, and on May 17, 1909, caused execution to issue thereon and H. D. Parker, executor of the estate of B F. Winkleman, deceased, to be served with notice of garnishment. Upon the settlement of the estate, the executor had in his hands $ 273.84 after the payment of debts and expenses of administration and was ordered by the court to deposit the same with the clerk for future disposition.
By the second clause of his will, Winkleman had bequeathed to his niece, Ella Winkleman, since married to McDowell, the sum of $ 600, to be paid to her as soon after his death as possible. By the third clause he bequeathed the rest of his estate to his nephews, James M. and Melvin Winkleman. The residuary legatees intervened, claiming that the testator had satisfied the legacy to Mrs. McDowell prior to his death, and that they were entitled to his entire estate.
The issues were tried to the court and judgment entered finding there to have been no ademption, and ordering the judgment to be paid from the legacy to Mrs. McDowell. The interveners appeal.
Reversed.
Bolton & Shangle, for appellants.
Irving C. Johnson, for appellee.
The estate left by B. F. Winkleman, deceased, after the payment of debts and costs of administration, amounted to $ 273.85. By the second clause of his will, executed in 1883, he bequeathed $ 600 to his niece, Ella McDowell, and by the third clause the residue of his estate to his nephews, James M. and Melvin Winkleman, the interveners. The issues raised by the pleadings were such that unless the legacy to Mrs McDowell was satisfied prior to the testator's death, the judgment of plaintiff against her was rightly ordered to be satisfied from a legacy to her; but, if satisfied, the entire amount passed to the interveners under the third clause of the will.
That the testator paid her $ 400 April 9, 1908, is not questioned, but, as he did not stand in loco parentis, no presumption arises therefrom that this was intended to be in satisfaction, even in part, of the legacy. Re Youngerman, 136 Iowa 488, 114 N.W. 7; Carmichael v. Lathrop, 108 Mich. 473 (66 N.W. 350, 32 L. R. A. 232); Re Brown, 139 Iowa 219, 117 N.W. 260.
Whether such payment was in satisfaction thereof necessarily depends upon the intention of the testator in making it and extrinsic evidence is admissible to aid in ascertaining such intention. Allen v. Allen, 13 S.C. 512 (36 Am. Rep. 718); Richards v. Humphreys, 32 Mass. 133, 15 Pick. 133; Van Houten v. Post, 33 N.J.Eq. 344; Rogers v. French, 19 Ga. 316; Thomas v. Capps, 68 Ky. 273, 5 Bush 273 at 276; Kirk v. Eddows, 3 Hare 509.
Such evidence is resorted to not for the purpose of showing an intention of revoking or altering the will, but to establish the purpose of the testator in making the subsequent advance or payment; that is, whether he intended it to operate as a satisfaction of the legacy or as an additional bounty to the legatee. With this in mind, let us turn to the evidence. It appears that in April, 1908, the testator received from one Hunt in final settlement for the purchase of some land, the sum of $ 750, and out of this handed $ 400 to Mrs. McDowell, who was then present, and took the following receipt from her:
Hunt, who testified, was asked:
This was the only evidence bearing on the subject...
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