Stewart v. Stewart

• Decision Date: 23 January 1896
• Citation: 65 N.W. 976,96 Iowa 620
• Parties: E. J. STEWART, Administratrix, v. WILLIAM A. STEWART, et al., Appellants, and RALPH R. STEWART, et al
• Court: Iowa Supreme Court

65 N.W. 976

96 Iowa 620

E. J. STEWART, Administratrix, v. WILLIAM A. STEWART, et al., Appellants, and RALPH R. STEWART, et al

Supreme Court of Iowa, Des Moines

January 23, 1896

Appeal from Washington District Court.--HON. A. R. DEWEY, Judge.

This is a proceeding in equity for the interpretation of the will of John Stewart, deceased. From the decree rendered, a part of the defendants appeal.-- Affirmed.

Affirmed.

C. J Wilson, Woodin & Son, and E. M. Shelton for appellants.

H. & W Scofield and Roberts & Brookhart for appellee.

Robinson J. Kinne, J. (dissenting).

OPINION

Robinson, J.

The questions in controversy are presented by the pleadings and agreed statement of facts. From these it appears that John Stewart, a resident of this state, died in November, 1893, and his will was duly probated at the next January term of court. This action is brought by the administratrix of his estate for the interpretation of the will. The defendants are seven children by his first wife, and the child of another child by that wife, and seven children by his second wife. At the time of his death the testator was the owner of the south half of the southeast quarter of section No. thirty, the north half of the northeast quarter of section No. thirty-one, the west half of the southeast quarter of section No. thirty-two, --all in township No. seventy-six north, of range No. seven west,--and two timber lots of small value. All of the tracts were worth, together, about fourteen thousand dollars, those in sections thirty and thirty-two being of the value of about four thousand dollars each. The decedent also left property, consisting of money deposited in the bank, stock, grain, hay, and other personal property on his farm, of the aggregate value of four thousand five hundred dollars. He was not owing anything, and the debts against his estate are for the expense of his last sickness and funeral, and are small in amount. The will gave to his widow the tract of land in section thirty-one, which was the home farm, one of the timber lots, one horse, two cows, and household and kitchen furniture, in lieu of dower, and to two sons by his first wife, and two sons by the second one, the other timber lot. These provisions of the will are not in dispute. Those portions which are to be considered in the determination of the questions presented are as follows: "Item 2. It is my will, and I do hereby give, devise, and bequeath to my son Ralph R. Stewart the west half of the southeast quarter of section No. thirty-two (32) in township No. seventy-six (76) north, of range seven (7) west, * * * charged, however, with the payment of the sum of four thousand dollars; one thousand dollars to be paid two years after my decease, the residue to be paid one thousand dollars each year from that time until the whole sum shall have been paid. Item 3. It is my will, and I do hereby give, devise, and bequeath to my son Fred D. Stewart the south half of the northeast quarter of section No. thirty (30) in township No. seventy-six (76) north, of range seven (7) west, * * * subject, however, to the payment of the sum of three thousand four hundred twenty-eight dollars and seventy-five cents, in manner following, to-wit: Eight hundred and fifty-seven and eighteen one-hundredths dollars ($ 857.18) in two years from date of my death, and a like sum annually from the time of each payment until the whole sum shall have been paid." "Item 6. It was and is my will and intention that the land devised and bequeathed by item second thereof should--the proceeds thereof--go in equal shares to the children and heirs at law of my first wife, long since deceased; and I do hereby direct the executor of this my last will and testament to pay the money collected from the devisee Ralph R., in equal parts, to my granddaughter, Clara Hamil, Mary A. Palmer, my daughter Francis A. E. Tripp, my son William A., my daughter Sarah, my daughter Flora J., my sons John F. and George Stewart, or, in the event of either of them dying, then to heir or heirs of such one equal share of such sum. Prior to the making of this will I have given, by way of advancement, to William A. and Samuel E., two hundred and fifty dollars. My son William's and my granddaughter Clara Hamil's shares are to be diminished by that amount. Item 7. It is my will and intention that the children of my present wife shall equally share in the proceeds of the land bequeathed to my son Fred D., valued at four thousand dollars. F. D. having received his share in land, the remainder of the value of said land--the same by this will directed to be paid by him--is to be equally divided among the remainder of said children, to-wit, my son Ralph R., my daughter Alice Caldwell, Maud M., Cordelia B., Myrtle O., and Jessie B.; in the event of the death of either of them before the taking effect of this will, the share of such decedent to be paid to its heirs. Item 8. The residue of my estate I direct to be divided equally, share and share alike, between all my heirs." The south half of the northeast quarter of section thirty in township seventy-six north, of range seven west, did not belong to the testator when his will was made, but was then, and had been for years, owned and occupied by one Charles Crumpacker. The south half of the southeast quarter of that section, which was owned by the testator, is not described in the will. The petition alleges that doubts have arisen whether item three of the will devises to Fred D. Stewart any land to which he can claim title, and, if it is held that it does not, whether he and Ralph R., Maud M., Cordelia B., Myrtle O., and Jessie B. Stewart, and Alice Caldwell take anything under item seven, and whether the advancement mentioned in item six means that two hundred and fifty dollars was advanced to William A. Stewart, and the same amount to Samuel E. Stewart, or whether the advancement was the aggregate sum of two hundred and fifty dollars to both. The plaintiff asks that the will be construed with respect to the matters in doubt. The district court found that the testator intended to and did devise the south half of the southeast quarter of section thirty to Fred D. Stewart, subject to the amounts as provided in the will, and that the advancement to be deducted from each of the bequests to William A. Stewart and Clara Hamil should be computed as two hundred and fifty dollars. The children by the first wife, and the grandchild Clara Hamil, appeal.

I. It is claimed that the district court corrected the will, and that in so doing it violated well-established rules applicable to the construction of wills. It is hardly accurate to say that the will was corrected by the court. Its reformation was not asked nor attempted, but the court interpreted it to intend that for which the decree provides. The stipulation as to the facts shows that the testator intended to devise the land he owned in section thirty to his son Fred, but that the error in the description was due to a mistake by the scrivener. A clause in the stipulation provides that in determining the case the court may exclude such of the facts shown in the stipulation as are immaterial irrelevant, or incompetent,...