In re Estate of Lyon

Seevees, J. I. The first question we are invited to consider is, whether “the widow is entitled to receive one-third „ „ witiow’ssiiare 2y :Pnot°af-1" feotea by will. of the personal estate of her deceased husband, notwithstanding the provisions of a will giving more than two-thirds of the same to his children.” Qounsej for appellant frankly concede that this question was determined adversely to the appellant by a majority of the court in Ward v. Wolf, 56 Iowa, 465, and that this case was followed in Linton v. Crosby, 61 Iowa, 401; but they with much force and vigor contend that these decisions are erroneous and contrary to both the letter and spirit of the statute. The writer is directed to say that the court adheres to the rule established in the cited cases, and that it is not deemed necessary to restate the reasons or advance others in suppport of the rule. It therefore is unnecessary to consider the question whether the widow was allowed more than she was entitled toby the court; for, as we understand counsel, such question only becomes material in case the court overruled the cases above cited. II. The will was executed on the thirty-first day of August, 1876, and the testator died after the sixteenth day 2._. ad_ beforenandS after making of April, 1880. After making provision for the widow, and specific devises of real estate to each ^ anc[ a wafcch t0 pjg grandson, the testator devised all of the residue of his estate to his three children, Louis E. Lyon, Estelle Morsman and Ella L. War-field; the same to be equally divided between them. During the life-time of Mr. Lyon, and from .February 17, 1875, to April 16, 1880, as appellees claim, he made advancements to the appellant, or charged her with the sum of $14,525, intending thereby to create the relation of debtor and creditor, or that the same should be regarded as advancements to be de-’ ducted from her share of his estate. Of this sum, $9,725 was so advanced or charged prior to the execution of the will. The appellant claims that this last-named sum was a gift, or that, whatever it may be designated, it cannot be charged' to her, [378] and deducted from tbe share she would otherwise be entitled to under the will. The fact is fchat the testator gave the appellant but $100, and that was after the execution of the will, unless what was given her as a wedding present can be so regarded. In the view we take of the case, it is not necessary to further refer to the gift made appellant on her marriage. All the balance of the money or property, amounting in value to $14,425, was given to the appellant’s husband, and was charged to him by the testator in his books. Counsel for the appellant concede that the money and. property given to her and her husband after the execution of the will should be regarded as an ademption of the prior legacy, and that, from the amount to which the appellant is entitled, the amount so given should be deducted; but it is contended that the amount so given prior to the execution of the will cannot be brought into hotchpot, nor can such prior gift be regarded as an ademption of a legacy given in a will subsequently executed. The claim being that, conceding that the money and property given appellant’s husband should be regarded as advancements to appellant, and the same brought into hotchpot if there was no will, such rule has no application to a case where there is a will under which the appellant is a residuary legatee; that the rule applies to intestate, or possibly to partially intestate, estates only. This position, we think, must be sustained. The authorities so hold; and our attention has not been called to one which holds otherwise. See Snelgrove v. Snelgrove, 4 Desaus. Eq., 274; Richmond v. Vanhook, 3 Ired. Eq., 581; Brewton v. Brewton, 30 Ga., 416; Loring v. Blake, 106 Mass., 592; 1 Pom. Eq., § 570. The primary object in all cases is to ascertain the intention of the testator. The will must stand and speak for itself, unless it has been revoked or changed in the manner provided by statute. As the will gives the appellant an equal share of the estate, after the specific legacies have been satisfied, and no mention is made in the will of any advance [379] ments haying been made to her, or that she is to be charged therewith, the presumption must obtain that such was not the testator’s intent. This, it seems to us, must be so; and that it quite clearly appears that it was not the intent of the testator that appellant should be charged with money given her husband prior to the execution of the will, for the reason that he clearly intended that she should receive the one-third part of the residue of his estate; and it is clear she would not receive this share if the so-called advancements are to be charged to her. III. The money and property given the appellant’s husband was either a gift, an advancement, or a debt. We do not 3. wtt.t.. pa-astotest?”117 rule applied, R was the latter; for there is nothing tendiug show that it was so intended, unless the simple charge in the books makes it a debt due from the appellant to the testator. But it was not charged to the appellant, and it could not have been collected of her. Suppose the estate ha.d proved to be insolvent, can it be successfully claimed that a recovery could have been obtained against the appellant for money given her husband? ¥e feel sure that this inquiry must be answered in the negative. It, therefore, must have been either an advancement or a gift. If it was the latter, then it was fully executed prior to the execution of the will, and the testator could not recall it without the consent of the appellant. If it should be regarded as an advancement, can a prior advancement be an ademption of a subsequent legacy or gift by will? Courts of equity incline strongly in favor of equality, and against double portions. But it is difficult to say that the testator intended the legacy as an ademption, or to be in lieu of the prior advancement, for the reason that the residue of an estate is always uncertain. He could not know with any reasonable degree of certainty what it would be. The costs of administration were unknown. Losses might occur between the time the will was executed and the death of the testator, or the estate might increase in Aralue. That a subsequent gift may be intended as in lieu [380] of, or as a satisfaction of, a prior promise or legacy, we can readily conceive. But, even in sucb case, we understand the rule to be that the subsequent gift must be of the same class or kind as the provision made in a prior will. Therefore a devise in a will of $500 may be regarded as satisfied by the subsequent payment of the same amount of money to the devisee as a marriage portion, if so intended; and it has been held that such intention may be shown by parol. Hartop v. Whitmore, 1 P. Wms., 681. The case at bar is materially different, but counsel for the appellee contend that parol evidence is admissible in this case to show that the testator intended the devise to be different from what the will on its face appears to be; that is, that appellant was not to have one-third of the residue of the estate, but that she was to be charged with a prior advancement. Now, it seems to us that this, in substance and effect, is a revocation or alteration of the provisions of the will, which are clear, certain and definite, without a compliance with the requirements of the statute. Zeiter v. Zeiter, 4 Watts, 212. The rule as to the admissibility of parol evidence in cases of this character is thus stated in 3 Greenl. Ev., § 300: “That parol evidence is not admissible to prove that the party did not mean what he has said, [that is, that the appellant should receive the one-third of the residue of his estate;] but that, when the law presumes that he did not so mean, parol evidence is admissible to prove that he did, by rebutting that presumption; it not being conclusive, but disputable.” It was established by parol evidence that, a short time prior to the testator’s death, he asked appellant if she knew how much “money he had given her.” She replied: “Yes; it was over $13,000.” After his death, the executor forwarded to her a copy of the account, and she and her husband indorsed thereon, “Correct,” signed their names thereto, and returned it. But it is apparent, we think, that the appellant did not then believe it was to be made the basis of a charge against her. At most, however, it amounts to a [381] statement that she had received the amount stated in the account of her father. It, however, clearly appears that she did receive but $100, and the residue was given to her husband, and was charged by the testator to him. Now, what is an advancement? It is nothing more or less than an irrevocable gift made by á parent to a child in anticipation of such child’s future share of the estate. It may be, when the testator made the charge to the appellant’s husband, that he intended the money so charged and given as an advancement to appellant, but we think such evidence is inadmissible to establish such fact, because it directly contradicts the provisions of the will. It will not do to say that the will creates a presumption merely which may be contradicted by parol. The will constitutes written, evidence of the testator’s intent, which can only be overcome by some writing executed as provided by Code, §§ 2829, 2330. For the reasons stated, we think the court erred in charging the appellant with $9,725, and deducting the same from the share she is entitled to under the will. Modified AND Affirmed.