Scott v. Scott

• Decision Date: 24 October 1906
• Parties: NANCY R. SCOTT, Appellant, v. HAMILTON SCOTT, ET AL., Appellees
• Court: Iowa Supreme Court

109 N.W. 293

132 Iowa 35

NANCY R. SCOTT, Appellant, v. HAMILTON SCOTT, ET AL., Appellees

Supreme Court of Iowa, Des Moines

October 24, 1906

Appeal from Iowa District Court.--HON. O. A. BYINGTON, Judge.

ACTION in equity to construe the provisions of a will. There was a decree in favor of defendants, and plaintiff appeals.

Affirmed.

Tom H Milner, for appellant.

Popham & Havner, for appellees.

OPINION

BISHOP, J.

James Scott, late of Iowa county, died testate, leaving surviving him the plaintiff, his widow, and the defendants, his brothers and sisters. By his will, he made provision for the payment of his debts, and then provided as follows: "3. The rest, remainder and residue of my property of every kind and nature I will, devise and bequeath to my wife, Nancy R Scott, to have, hold, use and enjoy during the term of her natural life, except that I will, devise and bequeath her the sum of three thousand dollars absolutely and balance to her exclusive use, benefit, behoof and enjoyment during the term of her natural life as aforesaid. The above and foregoing bequest to be taken and accepted by my said wife in lieu of her statutory rights. 4. At the death of my said wife, I give, devise and bequeath the rest, residue and remainder of my property of every kind and nature to my legal heirs, share and share alike." The will was duly admitted to probate, and it appears that in accordance with a further provision thereof by which plaintiff was nominated as sole executrix, she has qualified and is acting as such.

It is the contention of plaintiff that there was devised to her by the will the entire estate of which her husband died seised, the real estate in fee simple, and with absolute title to the personal property. On the other hand, the defendants contend that by the will only the sum of $ 3,000 was given to the plaintiff by way of an absolute devise, and that as to the residue of the estate there was given to her no more than the simple right to hold, use, and enjoy during her natural life. The court below accepted of the contention of defendants as sound, and entered a decree accordingly. Of the correctness of the result thus reached we entertain no doubt. It is well-established doctrine that in giving construction to a will it is the duty of the courts to ascertain and give effect to the intention of the testator. If the language is not ambiguous, and the disposition sought to be made is not open to criticism because violative of some established rule of law, there is no alternative but to execute the will as it is written. Murphy v. Black, 44 Iowa 176; Law v. Douglass, 107 Iowa 606, 78 N.W. 212. And obviously there can be no room for construction where the language of the will is plain and unequivocal. Smith v. Runnels, 97 Iowa 55, 65 N.W. 1002.

It may be conceded that the will before us is not perfect as to form of words. Taking it up by its four corners,...