Smith v. McKitterick

• Decision Date: 17 September 1879
• Citation: Smith v. McKitterick, 51 Iowa 548, 2 N.W. 390 (Iowa 1879)
• Parties: AMANDA T. SMITH AND ANOTHER v. E. A. MCKITTERICK, ADMINISTRATOR, ETC.
• Court: Iowa Supreme Court

51 Iowa 548

2 N.W. 390

AMANDA T. SMITH AND ANOTHER

v.E. A. MCKITTERICK, ADMINISTRATOR, ETC.

Supreme Court of Iowa.

Filed September 17, 1879.

Appeal from Des Moines circuit court.

Temperance Curts executed her last will, containing the following provisions:

“1. I have and own in my own right the sum of $2,000, received from the estate of my father, which I will and bequeath to my daughters, Amanda and Adaline, in equal shares, to them and their heirs and assigns.

2. Whereas, the will of my deceased husband, John Curts, is now being contested at law by some of the heirs; and, whereas, in case said will should be broken and held to be void at law, I, as the wife and widow, will be entitled to one-third of all my husband's real and personal property: Now, therefore, if by reason of the premises I shall become owner of said estate above named, I will and bequeath the same in the following manner: I desire that my share and interest in the said real and personal property be converted into money by my executor as soon as practicable after my decease, and the proceeds distributed as follows, to-wit: First. To my daughter, Susan Sydell, of Texas, I give the sum of $3,000. Second. To my daughter, Amelia Moore, of Illinois, the sum of $500. Third. To my daughter, Temperance Connover, of Illinois, I give the sum of $3,000. Fourth. To my daughter, Anna Bell Daniels, of Burlington, Iowa, $500. Fifth. To my daughter, Eliza Brooks, of Illinois, I give the sum of $500. Sixth. To the two eldest daughters of my son, Thomas Curts, Adaline and Amanda, I will and bequeath the sum of $500 each. Seventh. To my son, John Frederick Curts, of Illinois, I will and bequeath the rest and residue of all my property, of every nature and kind whatsoever, for him, his heirs and assigns, forever; and I hereby appoint and nominate my friend, Edward McKitterick, executor of this, my last will and testament, and authorize him to sell said estate, real and personal, which may come to me as aforesaid.”

Temperance Curts died on the twenty-second day of August, 1875. Letters of administration were not issued to the defendant until August, 1877, because objections to the probate of the will had been filed. The plaintiffs were not a party to said objections. The first publication of notice of the appointment of the executor was made October 6, 1877. At the time of her death Temperance Curts was the owner of a note of $2,000 executed by T. G. Kendall, dated January 26, 1871, bearing interest at ten per cent. per annum, payable annually.

On the thirty-first of August, 1878, the plaintiffs filed their petition alleging that they are granddaughters of Temperance Curts, and the persons named in her will as daughters, and that by the terms of said will the money which was at interest, which Temperance Curts received from her father's estate, and which she held in her own right, was bequeathed to plaintiffs. The plaintiffs ask an order authorizing and directing the administrator to pay them the sum of $1,000 each, with interest at the rate of ten per cent. per annum from the date of the death of Temperance Curts. The defendant demurred to this petition. The demurrer was sustained and the plaintiffs took leave to amend. On the eighteenth day of October, 1878, the plaintiff filed a petition reaffirming all and each the matters and things included in the original petition on file, and stating that, not knowing whether they can recover on the statements of the original petition, they make the following amendments: “That the property which the executor returns on his inventory was the property which the said Temperance Curts owned in her own right; that the same is the property which she refers to in her will as that which she received from her father's estate; that the said $2,000 to be paid to petitioners has been at ten per cent. interest since the death of the testatrix. * * * And these petitioners ask the sum of $1,000 each, with interest at ten per cent. from one year from the death of the testatrix. And if, from the facts stated, plaintiffs are not entitled to interest as asked, they pray for interest at six per cent. per annum for one year from the death of the testatrix.” The answer denies that petitioners are entitled to any greater sum than $1,000, and alleges that defendant has always been ready to pay over that sum. It is admitted that there is a sufficient amount in the executor's hands, the proceeds of said, note to pay the...