Merrill v. Phelps (In re Phelps' Estate)

• Citation: 126 N.W. 328,147 Iowa 323
• Parties: IN RE PHELPS' ESTATE. MERRILL v. PHELPS ET AL.
• Decision Date: 10 May 1910
• Court: United States State Supreme Court of Iowa

147 Iowa 323

126 N.W. 328

IN RE PHELPS' ESTATE.MERRILL

v.PHELPS ET AL.

Supreme Court of Iowa.

May 10, 1910.

Appeal from District Court, Winneshiek County; A. N. Hobson, Judge.

The opinion states the case. Judgment affirmed.

Lacy, Brown & Lacy, for appellant.

Hamlin & Boyden and Albert M. Kales, for appellees.

SHERWIN, J.

On the 20th day of July, 1906, George Phelps executed his last will and testament at St. Paul, Minn. He died on the 7th day of November, 1907, and his said will was duly probated in Winneshiek county, Iowa. One of the bequests under the sixth item of his will was of $25,000 to his brother, Thomas Phelps, of Chicago, Ill. Thomas Phelps died on the 25th day of December, 1906, leaving surviving him two daughters, Lillian Phelps Merrill, the appellant herein, and Viola Phelps Carpenter, his only heirs at law. The appellant brought this action to compel the executors to pay to her one-half of the bequest of $25,000 to her father. The trial court held that it went into the residue of the estate, and was bequeathed by the residuary clause of the will. The correctness of the ruling presents the only question for our determination.

The deceased, George Phelps, left a large estate, and his will contained many substantial bequests to relatives. To the appellant he gave $10,000, and to her husband he gave $5,000. He gave to the appellant's sister, Viola Phelps Carpenter, $20,000, and to her husband he gave $5,000. The specific bequest to these two nieces and their husbands amounted in the aggregate to $40,000. The bequest to the appellant and her sister and to their husbands contained the farther provision that, in the event said devisees did not survive the testator, the sum bequeathed to each should go to the heirs of the original devisee. In a bequest to another niece, and in bequests to relatives of his first wife, it was provided that, in case they did not survive him, the bequests made to them were to go to their children. Bequests made to other nephews, nieces, and other relatives contained no such provision, but the will contained a residuary clause, which is as follows:

“Item Ninth. I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed, wheresoever situated together with any of my estate that may fail, for any reason to pass under the foregoing terms and conditions of this my will, and together with all funds placed in trust upon the expiration of said trusts, to the following named persons and in the following shares:

To Viola Phelps Carpenter one-half (1/2) thereof, to Lillian Phelps Merrill one-fourth (1/4) thereof, to Thomas F. Phelps, son of my brother William Phelps, one-eighth (1/8) thereof, and to Frederick S. Phelps, son of my brother Nathan Phelps, one-eighth (1/8) thereof. Should any of said residuary legatees or devisees above named die before my death leaving no heirs of his or her body, then I give, devise and bequeath the...