Wilts v. Wilts
| Decision Date | 08 April 1911 |
| Parties | AMELIA WILTS, Appellant, v. OTTO WILTS, FANNIE WILTS, HENRY WILTS, MARGARET SANTON, LIZZIE SANTON, LENA SANTON, SUSIE SANTON, HENRY SANTON |
| Court | Iowa Supreme Court |
Appeal from Hardin District Court.--HON. C. E. ALBROOK, Judge.
SUIT for the construction of the will of John Wilts, deceased wherein the widow claims one-third of the real estate after certain mortgages have been released. From a decree construing the will otherwise, she appeals. Reversed.
Reversed.
Herbert A. Huff and Ward & Williams, for appellant.
Lundy & Wood and Chas. A. Rogers, for appellees.
John Wilts died testate September 5, 1908, seised of nearly a thousand acres of land and survived by his widow, Amelia Wilts, two sons, Otto and Henry Wilts, and the four children of a daughter, Vipke Santon. He left a will, executed December 8, 1904, in the first clause of which he directed "that all my just debts and funeral expenses shall by my executor hereafter named be paid out of my estate as soon after my decease as shall by him be found convenient." The second clause was as follows:
It is my will and I do hereby devise and bequeath to my beloved wife, Amelia Wilts, now living with me, one-third of all my property, both real, personal, and mixed, of which I shall die seised and possessed or to which I shall be entitled at the time of my decease, she to have and to hold the same as her own, for her own use, benefit and behoof forever. And I do hereby revoke a certain antenuptial contract made and entered into by my said wife, and myself before our marriage, on the 21st day of June, 1895, and recorded in the office of the recorded of deeds, in and for the county of Hardin and state of Iowa in Book 140 of Deeds on page No. 442, it being now my desire, for the benefit of my said wife, to relinquish all benefit upon me conferred by the said antenuptial contract, and to hold the same null and void for her benefit as my wife.
By the terms of the antenuptial contract, the widow had relinquished all right of dower or interest in his property which might otherwise accrue to her upon his death. Upon admission of the will to probate, the widow elected to take thereunder. The personal property proved insufficient to discharge decedent's debts, among which were certain mortgages on real estate, and the controversy is whether these should be paid from the proceeds of the land generally, or of that portion which descended to the heirs. One of these mortgages in the execution of which the widow joined secures the payment of $ 5,700, on which $ 700 has been paid, and the other the payment of $ 1,800. The district court directed the sale of a quarter section of land, and that out of the proceeds thereof these mortgages, any other outstanding indebtedness, and the costs of administration be satisfied and that the widow take one-third of any of the proceeds remaining together with one-third of the land not sold, and that Otto and Henry Wilts have two-ninths thereof each, and the four children one-eighteenth each.
I. Appellant first contends that the devise to the widow is specific, and for this reason she is entitled to have the indebtedness satisfied from the descended property. The rule has long been established that where real estate has been specifically devised, a devisee, in the absence of contrary intention on the part of the testator, is entitled to have it exonerated from the mortgage placed upon it by the testator from the personal estate, if adequate, and, if not, from other property of the decedent. Brown v. Baron, 162 Mass. 56 (37 N.E. 772, 44 Am. St. Rep. 331); In re Riegelman's Estate, 174 Pa. 476 (34 A. 120); In re McCracken's Estate, 29 Pa. 426. If, then, the devise was specific, the widow is entitled to have other property of decedent first resorted to for the satisfaction of the mortgages. To be specific, a gift, whether real or personal property, must be of a designated article or specific part of the testator's estate which is identified and distinguishable from other things of the same kind, which may be satisfied by delivery of the specific thing or portion. Smith v. McKitterick, 51 Iowa 548, 2 N.W. 390; Evans v. Hunter, 86 Iowa 413, 53 N.W. 277; Davis v. Close, 104 Iowa 261, 73 N.W. 600.
At the common law all devises of real estate were regarded as specific. "Other devises of land, whether in particular or general terms, must of necessity be specific from the circumstance that a man can devise only what he has at the time of devising, . . . but it is quite different as to personal estate." Howe v. Earl of Dartmouth, 7 Ves. Jr. 147. A will was construed as speaking from the date of its execution, and so the lands which were intended to pass thereunder might be identified. The result of a sale or other disposition thereof was the same as when an article of personal property specifically bequeathed is adeemed--it is gone; and this is one of the criteria of specific legacy or devise. The fact that a devise of land was always specific seems to have been the real reason for placing lands devised after lands descended; in fact, in the class to be last charged with debts. Says Judge Redfield in his work on Wills vol. 2, page 870: "The most obvious and the chief reason why descended estates have been held liable before devised estates is that every devise of real estate is regarded...
To continue reading
Request your trial