Von Lackum v. Hartman (In re Hartman's Estate), No. 46199.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: GARFIELD
• Citation: 9 N.W.2d 359,233 Iowa 405
• Docket Number: No. 46199.
• Decision Date: 04 May 1943
• Parties: In re HARTMAN'S ESTATE. VON LACKUM et al. v. HARTMAN et al.

233 Iowa 405
9 N.W.2d 359

In re HARTMAN'S ESTATE.
VON LACKUM et al.
v.
HARTMAN et al.

No. 46199.

Supreme Court of Iowa.

May 4, 1943.

Appeal from District Court, Black Hawk County; R. W. Hasner, Judge.

Appeal by executors, trustees and legatees from an order in probate providing that the widow took under the will as a purchaser for value whose rights were superior to those of specific legatees.

Affirmed.

[9 N.W.2d 361]

Pike, Sias & Butler, of Waterloo, for appellants.

Pressey H. Frank, of Waterloo, for Ida M. Hartman, appellee.

GARFIELD, Chief Justice.

The executors of John C. Hartman, deceased, filed application in probate for authority to transfer to themselves as trustees 2,855 shares of stock in the W. H. Hartman Company, which were the subject of a specific bequest under Item III of the will. The widow filed resistance to the application, claiming that she is entitled under the will to “one-third in value of all the rest, residue and remainder of all the property” left by the testator and that the transfer of the stock to the trustees would leave insufficient in the estate to give her such one-third and would thus deprive her of a substantial portion of her legacy. The executors filed a reply to the resistance, alleging that the widow had accepted a portion of the bequest made in Item III and was estopped from resisting their application.

The matter was submitted to the court upon the files and records in the estate. The court held that the widow took under the will in lieu of dower, as a purchaser for value, and that the specific legacy in Item III of the will must abate to the extent necessary for full satisfaction of her bequest. The executors, trustees and legatees other than the widow have appealed.

The will of John C. Hartman consists of four items. Item I provides for payment of his debts. Item II gives to his wife, Ida M. Hartman, appellee, the homestead and also “one-third in value of all the rest, residue and remainder of all the property” owned by him at his death, in lieu of her dower rights under the laws of Iowa.

Item III gives to his executors, in trust, all the shares of stock in the W. H. Hartman Company of Waterloo, Iowa, owned by him at his decease, to be held by them for the benefit of his nieces and nephews, John P., Karl C., and Genevieve M. von Lackum and DeEtte v. Miller, appellants, the dividends from such stock to be turned over by said trustees. It is further provided, however, that in the event his wife shall survive him, the trustees are to pay her during her lifetime one-fourth of such dividends, the other three-fourths to be divided equally among said nieces and nephews. If any of said stock shall be sold during the life of his wife, one-fourth of the proceeds shall be set aside by the trustees and invested in good securities, the income therefrom paid to his wife so long as she lives. At her death the said fund shall be distributed among said nephews and nieces.

Item IV is a residuary clause, giving to the same four nephews and nieces “all the rest, residue and remainder of the property, real and personal,” that he owned at his decease.

The will was admitted to probate and John P. and Genevieve H. von Lackum were appointed executors and trustees. The widow filed her election to take under the will. The entire estate was appraised for state inheritance tax purposes at about $900,000, of which about $465,000 was the Hartman Company stock mentioned in Item III. The homestead specifically devised to the widow in Item II was valued at $17,500. Substantially all the rest of the estate is personalty. A federal estate tax of $187,451 was paid. Payments totaling $25,000 to apply upon executors' and attorneys' fees have been made and substantial additional payments are contemplated. It is apparent that if the Hartman Company stock is transferred to the trustees pursuant to the executors' application, free from the right of the widow to resort to any part thereof in satisfaction of her legacy, she will not receive one-third of the property owned by the testator at his death, as provided in Item II of the will.

1. Devises (of realty) and legacies (of personalty) are of two kinds-specific and general. A specific legacy is a bequest of a particular thing that can be distinguished from others of the same kind. A general legacy does not direct the delivery of some particular thing. Parsons v. Reel, 150 Iowa 230, 231, 129 N.W. 955; 69 C.J., pp. 919, 921, §§ 2085, 2086. The bequest to the wife of the home in Item II is a specific devise. The remaining provision in Item II for the benefit of the widow is a general legacy. The bequest

[9 N.W.2d 362]

of the Hartman Company stock in Item III is a specific legacy. Appellants (the executors, trustees, nieces and nephews) contend that the specific legacy in Item III may not be reduced in favor of the general legacy to the appellee in Item II.

Appellee concedes that ordinarily specific legacies do not abate while general legacies do. See Parsons v. Reel, supra. To “abate,” as here used, means to reduce a legacy on account of the insufficiency of the estate to pay all debts, charges and legacies in full. 1 Words and Phrases, Perm.Ed., p. 67; 4 Page on Wills, Lifetime Ed., p. 312, § 1493; 1 C.J.S., Abate, p. 20; 69 C.J., p. 976, § 2170. Appellee also concedes that if the general bequest in Item II were not to the widow in lieu of her distributive share, appellants would be entitled to prevail. Appellee contends, however, that this case falls within an exception to the rule that general legacies abate while specific legacies do not and that she took her bequest in lieu of her distributive share as a purchaser for value, and that such bequest is entitled to priority over the specific legacy under Item III. The trial court so held.

There is no decision of this court on the principal question involved. Parsons v. Reel, supra, 150 Iowa 230, 129 N.W. 955, indicates that the trial court there held that...