Phillips v. Harrow

• Decision Date: 18 December 1894
• Citation: 93 Iowa 92,61 N.W. 434
• Parties: PHILLIPS ET AL. v. HARROW ET AL.
• Court: Iowa Supreme Court

93 Iowa 92

61 N.W. 434

PHILLIPS ET AL.

v.HARROW ET AL.

Supreme Court of Iowa.

Dec. 18, 1894.

Appeal from district court, Wapello county; E. L. Burton, Judge.

Action in equity to set aside the probate of two paragraphs of the will of P. C. Ballingall, deceased, and to have them decreed to be void and of no effect. The relief demanded was granted in part, and the executors of the will, the defendant the Ottumwa Library Association, and the plaintiffs appeal; the appeal of the executors and the library association having been first taken. Modified.Wm. McNett, W. H. C. Jacques, and J. W. Lewis, for appellants.

W. W. Cory, Seevers & Seevers, and McElroy & Roberts, for appellees.

ROBINSON, J.

The will of the decedent contains twelve paragraphs. The first seven provide for the distribution among various relatives and other persons named of real and personal property, including the payment in money of $900 to Mattie J. Thomas; also of $7,500 to Mary J. Phillips, to be paid from that portion of the estate known as the “Ballingall Hotel Property” and other property devised to the city of Ottumwa, when the whole amount can be paid to her without serious detriment to that portion of the estate, and until that time interest on that amount at the rate of 6 per cent. per annum, payable semiannually. But the legatee was to pay the burial expenses of the decedent, and all charges connected therewith, and all his just debts except those secured by mortgage upon real estate. The sixth and seventh paragraphs of the will bequeathed various other sums, which amounted to $1,300, and provided for the payment to J. R. Harmon during his natural life of the sum of $200 each year. The eight and ninth paragraphs are the ones assailed by the plaintiffs, and are as follows:

“Eighth. To the Ottumwa Library Association I give, devise, and bequeath the sum of two hundred dollars per annum until further endowed as hereinafter provided, the same to be paid quarterly. Also a strip of ground off of outlot thirteen (13) in the city of Ottumwa, Iowa, being thirty-four (34) feet fronting on Main street and extending back the same width to right of way of the Chicago, Rock Island & Pacific Railway, and southeast line thereof is ten and one-half (10 1/2) feet northwest of that part of said outlet thirteen hereinbefore devised to Mary J. Phillips. The said strip of ground is numbered as lots five and six (5 and 6) on plat referred to in first clause of this will. The ten and one-half feet lying between the ground herein devised to said association and that devised to said Mary J. Phillips is marked on said plat as an alley, and is now devised to said association and Mary J. Phillips, to be used as an alley. This devise to the said Ottumwa Library Association is upon the express condition that the said ground shall be used for the purpose of erecting thereon a building for the use and benefit of a public library as hereinafter provided.

Ninth. All that portion of my estate known as the ‘Ballingall House Property,’ being lot three hundred and thirty-seventy (337) and the northwest twenty-two and one-half feet off of lot three hundred and thirty-eight (338) in the city of Ottumwa, Iowa. Also the northwest twenty-two feet, more or less, off of lot three hundred and thirty-nine (339) (being the property known as the ‘Magnolia Restaurant’) in the city of Ottumwa. Also the one acre of ground, more or less, upon which is situated what is known as the ‘Pony Pork House,’ now used as a pickle factory, in the city of Ottumwa, Iowa. Also all that part of outlot thirteen (13) not hereinbefore devised. Also the northwest forty-four (44) feet of lot three hundred and seventy (370) in the city of Ottumwa, Iowa. I will and devise to the city of Ottumwa, Iowa, subject to the charges herein and mortgages thereon, in trust for the following uses and purposes, namely: To be managed and controlled by three trustees, to be named and selected by the city council of said city, and to serve respectively as follows: One for one year, one for two years, and one for three years, and after that one to be selected annually for three years. And at no time shall there be more than two of said trustees of the same political party. But nothing herein contained shall disqualify any of said trustees from being his own successor. Said trustees shall give bond in double the amount they are expected to handle, to be approved by the city council, and said trustees shall receive for their services such compensation as may be allowed and fixed by the city council. The duties and powers of said trustees shall be as follows: The Ballingall House and tenements connected therewith are, under the supervision of said trustees, to be kept up perpetually and forever; the hotel retaining the same name which it now bears. The southeast one hundred and ten (110) feet of that part of outlot thirteen devised is to be used and kept up under the supervision of said trustees as a park, without expense to my estate. Said one hundred and ten feet of outlot thirteen is represented upon the plat referred to in the first clause of this will as lots seven (7), eight (8), nine (9), ten (10), and eleven (11). The twenty-two (22) feet of ground lying northwest thereof, and represented on said plat as lot twelve, shall be leased by said trustees to any suitable person who will use the same for a flower conservatory. If not so leased, the same shall be used by said trustees in connection with said park. All the other property herein devised and placed in charge of said trustees may by them, with the authority and approval of the city council, be leased for any length of time, or be by them sold, and I so direct, whenever it can, in their judgment, be done to good advantage. The purpose and object of this provision is to provide, in the first place, under the supervision and management of said trustees, a sinking fund of twenty thousand dollars ($20,000.00), for the purpose, with insurance, proceeds, and other accumulations, of rebuilding property in case of fire, or of remodeling the hotel building to suitably keep up with the times and the growth of the city. I further direct, and after the founding and accumulation of said sinking fund before named, the said trustees, from the interest derived therefrom, together with the rents and incomes that may be yielded by and from said Ballingall House property and other property above described, a second fund of six thousand dollars ($6,000.00) shall be raised and founded for the express use and purpose of maintaining the public library now established in the city of Ottumwa, and for the aid and increase of the same. And I here request that the management of said library, as soon as possessed of sufficient funds from this bequest or otherwise, erect on the ground hereinbefore devised for that purpose a suitable library building, in such manner that rentals may be derived from such parts as is not needed for the library, for the increase and assistance of its revenue. But should the said library association refuse to accept or use the said ground for the purpose for which it is devised, then I direct, and my will is, that the same shall go to the city of Ottumwa, Iowa, for the sole purpose of being used as a part of the park above provided for. After the founding of the perpetual sinking fund of $20,000 as hereinbefore provided, and the expenditure of the further fund of $6,000.00 to be raised as above directed for the benefit of the public library of Ottumwa, I hereby will and direct that under the supervision of the trustees hereinbefore provided for all accumulations arising from the rents of the said Ballingall House property and the other property above described, from the remainders returning from my general estate from the life estates hereinbefore devised or bequeathed, from all funds or sources that may otherwise fall in or accrue to the residuum of my estate, and all other property not herein devised, or that I may possess, shall go and be devoted under the direction of said trustees to the following uses and purposes, annually: One-fourth to and for the further benefit of the library association hereinbefore named. One-fourth to poor and needy people of the city of Ottumwa, Iowa, who are dependent upon their own labor for a livelihood. One-fourth to the religious societies of said city, without regard to sect, and to include all denominations professing to work for the good and well-being of mankind One-fourth to the accumulation of a fund to build or aid in the building and maintenance of a foundling hospital, with the special view and purpose of relieving unfortunate females, and for caring and protecting their offspring. But I direct and authorize that a part or all of the funds just mentioned may be temporarily changed and diverted for the public good in case of fire, flood, epidemic, or other distress.”

The eleventh paragraph is as follows: “Eleventh. The $900.00 bequeathed to my sister Mattie J. Thomas by the third clause of this will is to be paid her out of my bank account or money on hands at my death before any other claims or bequests are paid; and after the payment thereof my said bank account and money shall be used for the purpose of paying the bequests named in the sixth, seventh, and eighth clauses of this will, and the remainder of such bequests and annuities unpaid after exhausting said fund shall be paid out of the rents or income of the Ballingall House property and the property above devised to the city of Ottumwa. The $200.00 annuity given by the eighth clause of this will is to cease when the fund or bequest of $6,000.00 provided by clause ninth thereof, shall be raised.” The tenth paragraph refers to memorials of various kinds, and is not in controversy. The twelfth is as follows: “Twelfth. For the purposes of aiding the private devises and bequests herein, and so far as may be necessary, the trustees hereinbefore...