In re the Estate of Rawlings

Beck, C. J. I. Tbe estate of the testator was largely indebted. One claim, held by H. H. Trimble, was secured by mortgage on certain lands. By the decree of the court below, the proceeds of the sale of the lands are to be appropriated to the payment of the mortgage, and one-third of any balance is to be paid to plaintiff upon her dower interest. No objection is made by any of the parties to this provision of the decree. It, therefore, demands no attention. 1. estates of saies^of'reai estate: dower. II. The testator executed to the Security Loan & Trust Company two mortgages upon two other tracts of land, aggregating in quantity two hundred and thirty-four acres. One tract of two }lundred acres was the farm upon which testator and his widow lived for many years. The other tract, thirty-four acres, was not regarded as a part of the farm, not being adjacent to any part thereof. By the decree of the court below, the proceeds of the sale of the thirty-four acres is to be applied on the mortgage, with two-thirds of the proceeds of the other land constituting the farm, if such amount be necessary to pay the debt; but the whole procee ds, if it be necessary to use them to pay the mortgage, shall be so applied. The effect of the decree being to confirm the lien of the mortgage against all the land, but requiring one-third of any balance remaining from the proceeds of the farm to be applied, to the extent of one-third thereof, upon the widow’s claim for dower. It is insisted that this provision of the decree is erroneous, for the reason that it does not hold that the proceeds of the sale of the land be applied to the payment of the mortgage debt, without regard to the widow’s dower interest. It is insisted that the widow held a homestead right in forty acres only, and that her right to the protection awarded her by the decree should be limited to her homestead. But, in our opinion, the decree does not depend for support upon the widow’s dower right. The decree, in effect, directs that the mortgage shall be paid, even though it requires all the proceeds of the sale of the lands ; but, if [704] less will pay the mortgage, then the widow takes one-third of the balance remaining. All of the proceeds of the thirty-four acres are applied upon the mortgage. The court had the authority to so decree, in order to rightly set apart to the widow the portion of the proceeds of the land to which she is entitled on account of her dower interest. That interest the district court may determine and set apart. We think that duty was righty discharged by the decree. We are unable to discover in what regard the defendant who appeals is prejudiced. The decree gives to the widow no more than she is entitled to. If the decree had given her less, it would have been erroneous. III. Certain lands of the estate were unincumbered. The decree directs that they be sold, and one-tliird of the proceeds first applied to the widow’s claim for dower. No objection is made to this provision of the decree. I'V. The will is in the following language: 2. will : eon-suuotion. “In the name of God, amen. I, JohnH. Rawlings, of the town of West Grove, in Davis county, and state of I°wa> of the age of seventy-three years, and being of sound mind and memory, do make, publish and declare this my last will and testament in manner following property, that is to say: First. I give and bequeath to John H. P. Kery a lot of four (4) acres on the north corner of the southwest quarter of section twelve (12), in consideration the timber on ten acres of ground on section fourteen (14). Second. I want all stock to stay on all my farms, and, as fast as can be sold to an advantage, to be sold, and be paid on my debts. When my debts is paid, the remainder to my wife, Zeralda Rawlings, her lifetime, and at her death it shall be equally divided between Anna Elizabeth Kery and James R. Kery. In witness whereof, I have hereunto set my hand and seal this eleventh day of October, 1887. “Johst H. Rawlings. “Addition. I want the stock kept in by James R. Cary, and he to cultivate the home farm ; Zeralda, my wife, and he and his family to constitute a family, and [705] have their support from the gross proceeds of effects, and for his services he receive one-half the net proceeds after taxes and all expenses; the present stock, the stock that ■will come to market in the next two years, is not in this division, and the brown colt to remain on the farm as a breeder. I also ma,ke Wm, Russell my executor. In witness whereof I hereunto set my hand and seal this thirteenth day of October, 1887. “John H. Rawlings.” The first item of the will is not a subject of dispute, and need not be considered. We are to determine what property is disposed of by the second item. The second item is in this language: “I want all stock to stay on all my farms, and, as fast as can be sold to an advantage, to be sold, and be paid on my debts. When my debts is paid, the remainder to my wife, Zeralda Raw-lings, her lifetime, and at her death it shall be equally divided between Ann Elizabeth Kery and James R. Kery.” It is evident that this provision devises and bequeaths whatever-property it authorizes to be sold. A relative pronoun, or its equivalent, before the words “can be sold” would have made the meaning plain. We are authorized to supply such words in order to determine the true meaning of the sentence. Such pronoun or words should refer to and indicate the word “farms,” as one of the subjects of the verbs “can be sold” and “to be sold.” The word “farms,” as well as “stock,” doubtless, was intended by the testator to be the subjects of the sentence, though probably that may not be inferred from the words of the sentence alone. But that he intended to direct the sale of the farms for the payment of his debts cannot be doubted, in view of the fact that his debts amounted to seventy-five hundred dollars, and his whole personal estate is estimated at thirty-five hundred dollars. What was the value of the personal estate, other than the stock, does not appear, but it is to be inferred that it did not equal the sum named, for it appears that some other personal property belonged to the estate. But, if it be assumed [706] tliat tbe stock was of the value of thirty-five hundred dollars, it is plain that the testator did not direct the payment of seventy-five hundred dollars of debts out of that property alone. He intends that the stock and lands be sold for the payment of his debts, and whatever of the property or proceeds thereof remained after the payment of his debts should go to his wife for life, and whatever remained at her death should go to the beneficiaries named in the will. It is plain to our minds that the second item of the will disposes of the lands of the estate not disposed of in the first item. We reach the conclusion that the district court rightly held that the defendants, Ann Elizabeth Cary and James R. Cary, are the residuary legatees, entitled to the proceeds of the property not otherwise disposed of in the will after payment of debts, and the proceeds to be paid the widow on account of her dower interest. 8_. d0W6r. widow1-of effect. Y. The widow, Zeralda, refuses to take under the will. Of course, this does not invalidate the will as to the devises and bequests to others. The provisions of the second item for keeping property and its sale need not be the ground of contention, for it clearly appears, both by this item and the “addition,” that they, in this regard, cannot be obeyed after the wife refuses to take under the will. The property was to be kept for the use of the wife under the will. As she refuses to take under the will, that part of the items relating to the keeping of the property cannot be obeyed, and must be left out of view. The same is true as to the widow’s life-estate. The will provided that Ann Elizabeth Eery (Cary) and James R. Kery (Cary) shall take the property after the widow’s life-estate ends. But the widow refuses to take a life-estate, and takes dower. It clearly appears that the testator intended that the devisees just named should take the property after its enjoyment by the widow ceased, and after her interest therein was terminated. He did not intend that the benefactions to these devisees should be under the control of his wife, or should be [707] defeated by her. Under the exercise of her option, she refuses to take a life-estate, but takes the estate the law gives her. It clearly appears that the testator intended the devisees to take of the property whatever remained after the widow’s right thereto terminated. . The law will effectuate the intentions of the testator, if possible, and will secure to the legatees as nearly the benefits intended by the provisions of the will in their favor as can be done. 1 Redf. Wills. [ 3 Ed.] p. 429, note. These considerations lead us to the conclusion that the decree of the district court ought to be affirmed.