Stone v. Fisher, 7070
| Decision Date | 01 July 1943 |
| Docket Number | 7070 |
| Citation | 65 Idaho 52,139 P.2d 479 |
| Parties | ANNA A. STONE, Appellant, v. SUSA B. FISHER, one of the Executrices of the Estate of Elizabeth Webster, deceased, and one of her heirs, and H. FRED GARRETT, JOHN M. GARRETT, LEAH J. PETERSON, JOSEPH A. WEBSTER and DANIEL S. WEBSTER, Respondents |
| Court | Idaho Supreme Court |
1. Wills
Generally a voluntary alienation of property by deed works a revocation of will to extent that deed and will are inconsistent. (I.C.A., sec. 14-317.)
2. Wills
A will operates only upon property legally and equitably belonging to testator at time of death.
3. Wills
Where testator, after devising property under will by valid deed voluntarily executed and delivered, conveyed a property to devisee, property conveyed was not burdened by recitals in will and grantee took title under deed and not under will. (I.C.A., sec. 14-317.)
4. Wills
Where will devised one-fourth of estate to daughter, which portion was to include testatrix' house, furnishings and personal effects and testatrix thereafter executed and delivered to daughter a deed to house, deed removed reference to house from terms of will and left will as though house had never been referred to therein. (I.C.A., sec. 14-317.)
5. Executors and administrators
Where will devised one-fourth of estate to daughter, including testatrix' house, furnishings and personal effects and testatrix thereafter executed and delivered to daughter a deed to house, decree ordering distribution in accordance with will after deducting from daughter's share, value of house was erroneous. (I.C.A., sec. 14-317.)
Appeal from the District Court of the Third Judicial District of the State of Idaho, for Ada County. Hon. Charles F. Koelsch Judge. Appeal from a decree of the District Court affirming a decree and orders of the Probate Court in favor of respondents and against appellant. Reversed and remanded.
Thornton D. Wyman and Maurice H. Greene, for appellant.
A will operates only upon property legally and equitably belonging to testator at time of his death, and a deed of the property revokes that portion of the will devising the same. .
A voluntary alienation of property by deed works a revocation of will to the extent that they are inconsistent. .
The general rule is that subsequent conveyance of property devised by will impliedly revokes the will, and the property is thereby adeemed from its operation. (Brown v. Heller, 30 N.M. 1, 227 P. 594; 4 Black Com. 528, 529; 1 Jarman, Wills, p. 167; Rood, Wills, 368, 369; Schouler, Wills 651.).
James H. Hawley, Wm. C. Dunbar, and Harry S. Kessler, for respondents.
The law presumes that a testator intends to leave his property equally, unless the contrary intention appears. (Seiler v. Whiting, 52 Ariz. 542, 84 P.2d 452; In re Barnes, 158 N.W. 754; In re Oakley's Estate, 175 Misc. 463, 24 N.Y.S. (2d) 28; In re Young's Estate, 171 Misc. 947, 14 N.Y.S. (2d) 773.).
The facts on this appeal are not seriously in dispute and are substantially as stated in appellant's brief as follows:
Elizabeth Webster executed her will June 8, 1935. She died testate on October 18, 1937, and, thereafter, on November 30, 1937, her will was admitted to probate in the Probate Court of Ada County.
Mrs. Webster, who will hereafter be referred to as the "testatrix", was the mother of four children of whom two are living. To Anna A. Stone, appellant, and to Susa B. Fisher, one of respondents, testatrix left each one-fourth of her estate; to Fred Garrett and John Garrett, children of one of her deceased children, one-fourth of her estate; to Leah J. Peterson and Daniel S. Webster, children of her other deceased child, she left the remaining one-fourth interest; to Joseph A. Webster, one of her grandchildren, she left the sum of $ 100.00.
The will contains the following provisions:
"THIRD: I give, devise and bequeath to my daughter, Anna A. Stone, an undivided one-fourth interest of, in and to all the rest, residue and remainder of my property whether real, personal or mixed, of which I may die seized; provided, however, that a portion of said undivided one-fourth interest shall consist of the house and lot where I now reside, described as Lot 3 and South 5 feet of Lot 2 in Block "B" of Brumback's Addition to Boise City, Idaho, together with all personal effects contained in said house at the time of my death; consisting of household furniture, rugs, carpets, dishes, utensils, stoves, books, bedding, clothing and articles of like character, and which said house and lot and the personal effects I value at Twelve Hundred Dollars ($ 1200.00); it being my intention that the personal effects and real property referred to in this paragraph shall go to the said Anna A. Stone and that none of the other devisees named in this will shall share therein."
On June 15, 1936, approximately one year after the execution of her will and prior to her death, testatrix made and delivered to Anna A. Stone, appellant, a gift deed of the real estate described in the above paragraph 3 of her will.
On December 2, 1941, John and Fred Garrett, two of the legatees named in the will, filed their petition for partial distribution of the estate. After a hearing, the Probate Court entered its decree for partial distribution, which provided in part:
On the 6th day of March, 1942, the commissioners appointed to make a partition filed their report in the Probate Court by which they proposed to distribute the "Anna Stone house" to appellant and charge her interest in the estate with the sum of $ 1200.00, as the value of the house. To this report appellant filed her objections that the property was not a part of the assets of the estate. On the same date the Probate Court entered its order approving the report of the commissioners and distributing the "Anna Stone house" to appellant and charging her interest in the estate with the sum of $ 1200.00.
On the 14th day of November, 1941, Susa B. Fisher, a joint executrix of the will with appellant, filed a report and account of the estate. In her report, Mrs. Fisher included as an asset of the estate the real estate described in the will, being the property deeded by testatrix to appellant five years before. Appellant filed a concurrence in part of the report made by Mrs. Fisher and also specific objections thereto, particularly objecting to the inclusion of the real estate as an asset of the estate and specifically objecting to the charging of appellant's interest with the sum of $ 1200.00 as the value of the property. A hearing was had on the report and objections above referred to and on March 31, 1942, the Probate Court entered its order which reads in part as follows:
Appeals on questions of both law and fact were taken by appellant to the District Court from the order approving the account, the order confirming the report of the Commissioners in Partition and the Decree of Partial Distribution. Upon a trial de novo in the District Court, the evidence presented by appellant consisted of the proceedings had in the Probate Court, and the deed from testatrix to appellant. Respondents offered no evidence. The cause was submitted to the District Court on June 13, 1942, whereupon, the court entered its decree affirming the orders and decree of the Probate Court appealed from, and remanded the cause to the Probate Court for further proceedings. This appeal is from the decree so entered by the District Court.
Appellant specifies and relies upon three assignments of error: (1) "The District Court erred in approving and confirming the Decree of Partial Distribution of the Probate Court in the estate of Elizabeth Webster, deceased, in so far as the same held the 'Anna Stone house' to be a part of the assets of said estate and that the share of Anna A. Stone in said estate should be charged the sum of $ 1200.00 as the value of said house.
(2) "The District Court erred in approving and confirming the report of the Commissioners in Partition in Probate in the estate of Elizabeth Webster, deceased, in so far as the same distributed to Anna A. Stone the 'Anna Stone house' and charged her share in the estate with the sum of $ 1200.00 as the value of the house.
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