Nichols v. Swickard
| Citation | 234 N.W. 846,211 Iowa 957 |
| Decision Date | 10 February 1931 |
| Docket Number | 40286 |
| Parties | BENJAMIN F. NICHOLS, Appellee, v. BENJAMIN F. SWICKARD, Appellant |
| Court | United States State Supreme Court of Iowa |
Appeal from Muscatine District Court.--D. V. JACKSON, Judge.
An action to quiet title, involving the construction of a will. From a decree for the plaintiff, the defendant appeals.
Reversed.
J. G Kammerer and Matthew Westrate, for appellant.
Nichols Tipton & Tipton and Gus Allbee, for appellee.
ALBERT J. FAVILLE, C. J., and EVANS, DE GRAFF, MORLING, KINDIG, and WAGNER, JJ., concur, STEVENS, J. (specially concurring.)
Townsend Nichols, a resident of Los Angeles, California, made a will on June 25, 1914. He owned at that time over 2,000 acres of land in Iowa, and, among the other provisions of this will, he gave a life estate in a certain 160 acres of land, specifically described, to a nephew, Myrton W. Brockway, with remainder over to his grandnephew, Benjamin F. Nichols, plaintiff in this case. In the fourth division of the will he gave a life estate in another specifically described 160 acres to Ida O. Nash, with the remainder over to Benjamin F. Nichols. In the fifth paragraph he gave a life estate in another definitely described 160 acres to Benjamin F. Swickard, with the remainder over to Benjamin F. Nichols; and this is the tract of land involved in this controversy. In the sixth paragraph he gave a life estate in another definitely described 160 acres to Mary M. Black, with the remainder over to Benjamin F. Nichols. In the seventh paragraph he gave a life estate in another definitely described 160 acres to Townsend B. Nichols, with the remainder over to Benjamin F. Nichols; and to the widow of Matthias Swickard he gave a life estate in another definitely described 160 acre tract, with the remainder over to Benjamin F. Nichols. In the ninth paragraph he gave a life estate in another definitely described 160-acre tract to John Nicola, with the remainder over to Benjamin F. Nichols. In the tenth paragraph he devised the rest, residue, and remainder of any and all real property to Benjamin F. Nichols. In the eleventh paragraph he disposed of his personal property in trust, and provided that, on the ending of the trust, the corpus thereof should go to Benjamin F. Nichols.
The testator, Townsend Nichols, was 79 years of age at the time this will was executed. He died December 6, 1926. On May 19, 1926, he executed in due form what is claimed to be another will. Both of these instruments were admitted to probate in California, and also in Iowa. This latter instrument reads as follows:
B. F. Swickard 160 acres
Myrton Brockway 160 acres
Ida Nash 160 acres
Harvey B. Franklin all property that was transferred from Harvey B. Franklin to B. F. Nichols
Melissa Black to be taken care of by B. F. Nichols. The remaining land to B. F. Nichols all bonds to Harvey Franklin."
Duly signed and attested.
The action here is to quiet title, the grandnephew, Benjamin F. Nichols, being plaintiff, and Benjamin F. Swickard, the beneficiary under the fifth paragraph of the will as above set out, plaintiff claiming that he is the owner in fee of this land in question, whereas the defendant claims that he is the fee owner of the land. This gives rise to the question before us for determination.
By referring to the second instrument above set out, it will be noticed, so far as the defendant, Swickard, is concerned, that all that is said is, "I give and bequeath to B. F. Swickard 160 acres." No definite description or location of the land is given. There is nothing in the terms of the instrument itself by which the land given to Swickard may be identified: and it is claimed by the plaintiff, therefore, that this devise must fail, and that, as the plaintiff is given the remaining land by a later clause in the instrument, he thereby becomes the owner of this land. With this contention we cannot agree. The evidence shows that, aside from the land covered by the first will, the testator, at the time of his death, was possessed of over $ 100,000 in personal property; and with the exception of the bonds, which were given to Harvey Franklin, no disposition whatever was made of the balance of the personal property.
The general rule governing the lapsing of legacies and devises,--namely, that they fall into the residuary estate,--is too well recognized to require citation of authority. The question here is whether or not this general rule will have any application. It will be noticed, under the wording of the second instrument, that the usual form "the rest, residue and remainder of my estate," or its equivalent, is not used, but the will simply says, "the remaining land to B. F. Nichols." The claim of the plaintiff is that, by the use of these words, he is made the residuary devisee of said estate, and therefore the general rule that lapsed legacies fall into the residuary estate applies, and he is, therefore, the fee owner of this land.
The general, ordinary, and usual signification of the term "residuary estate" is what remains after satisfaction of the debts, expenses of administration, legacies, and devises has been made. The purpose of such clause is to make a complete testamentary disposition of the testator's estate, so that no part of it may be left to pass as intestate property. We cannot hold, therefore, that, if the devise to the defendant herein should fail, it should be treated as a lapsed legacy, and fall to the plaintiff, because the instrument itself shows on its face that there were 480 acres of land which the testator did not intend plaintiff to have. More than this, we do not feel disposed to hold that a residuary estate was created here, within the meaning of the rule that lapsed devises fall into the residuary estate.
Passing this question, however, the defendant asserts in his pleadings that he is the owner of this land in question, and that, while the devise to him in the latter instrument does not contain any definite description or identification of the property, yet he is entitled to the land in question because he has lived on it for many years, and has, in fact, elected to accept the same, under the terms of the latter instrument. This confronts the court with an entirely new question in our procedure.
1 Page on Wills (2d Ed.), Section 839, lays down this rule:
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