Citation Numbers: 184 Iowa 340
Judges: Gaynor, Preston, Stevens, Weaver
Filed Date: 9/21/1918
Status: Precedential
Modified Date: 7/24/2022
Jacob A. Hart resided in Cedar Bapids, Iowa, and had a wife and three daughters. All of these daughters at some time married, and bore the names, Mary M. Watts, Elnora L. Huttig, and Francis V. Myers. At the time the will hereinafter referred to was executed, Mary M. Watts was a widow. Elnora was dead, but left surviving her two sons, Ewart Hart Huttig and Frederick J. Huttig. Francis was also dead, but left surviving her two children, Hart Myers and Willard Myers. Jacob owned considerable real estate and other property; and, on the 10th day of March, 1900, executed a will, in which he devised to his wife, Elnora, all his estate, both real and personal, to have and receive all the profit, income, and advantages that may result therefrom during her lifetime, the same to be taken and accepted by her in lieu of all dower in his estate. The remainder was disposed of as follows:
“One third to my daughter, Mary M. Watts [plaintiff in this suit], provided, however, if me or my estate have to pay a certain promissory note for $2,000' given by me to my said daughter, Mary M. Watts, then the amount so paid on said note to be taken .and deducted from the said one third of my estate.
“2d. The residue and remainder of my said estate, I give, devise and bequeath to Ewart Hart Huttig and Frederick J. Huttig, children of my late daughter, Elnora L. Huttig, and to Hart Myers and Willard Myers, children of my late daughter, Francis Y. Myers, to be divided between my said four grandchildren equally share and share alike.”
Jacob A. Hart died on the 26th day of May, 1900. His will was duly admitted to probate. Elnora, the widow, was appointed executrix of this will. It seems that much of the estate of Jacob A. Hart was not productive of income; so it was stipulated and agreed between the devisees and Elnora, the widow, that the real estate should all be soldi, and the proceeds deposited in trust, the income arising there
It is the claim of the plaintiff that she is entitled to receive one third Otf the estate, without reference to the $2,000 note referred to in that provision of the will under which she claim?. It is her claim that the $2,000 note was neither paid to her by Jacob A. Hart during his lifetime, nor by his estate since his death; that, therefore, she is entitled to the one third of the estate provided in the wiil. This is the only question involved in this case.
The facts disclosed by the record are that, some time before the making of the will, Mary A. Watts, the plaintiff, was married. Her husband died. Upon his death, she received $2,000 insurance. She loaned this to her father, Jacob. He gave her the promissory note referred to in the will. Just when these things happened, does not appear. They happened, however, some time prior to the making of the will. A few days before Jacob’s death, — in fact, he was then very sick and about to die, — he called the plaintiff, Mrs. Watts, to him;, and asked her if she had that $2,000 note which he had given her. Her testimony is:
“The note, the $2,000 note, was my husband’s insurance money. My father borrowed it from; me and gave me his note. Just before he died, he asked me to give him that note, which I did. Then he handed me this other note.”
This note appears in the record to be a note for $1,018.61, payable one year after date, and dated May 1, 1900. Jacob died May 26, 1900. She further testifies:
“This new note was handed to me and the old note surrendered, a few days before his death. I had no idea*343 what the note was. I did not say anything about it, as he was on his deathbed. I thought it was the same $2,000 note I handed him. When he called me in, he demanded it, or asked me to get it. Wien I brought the $2,000 note to him, he took it and kept it. He had always kept track of my business. I let him have some money. I don’t know what he intended that new note for. Tie handed it to me. He took the $2,000 note from me. I gave it to him. That was the time he handed me the other nóte.'”
This $2,000 note apparently was never returned by Jacob to his daughter, Mary,-, nor does the record show that she had ever had it in her possession after that time.
After the death of Jacob, the plaintiff (Mary) filed this $1,018.61 note as a claim against his estate. It was allowed and paid. At the time it was paid, she received on it the sum of $1,533.87. The court found that this sum, with interest from the date it was paid to Mary Watts, should be taken out of her share of the estate, under the provisions of the will hereinbefore referred to. From this part of the decree, plaintiff, Mary M. Watts, appeals.
The theory, evidently, upon which the court proceeded, in charging this sum up against the share devised, is, we take it, that the one-third interest in the estate given to her should, be diminished to the extent of what his estate was required to pay to her upon the $2,000 note referred to; that this payment so made was a payment made upon that $2,000 note; and that, therefore, by the terms of the will, the interest in the estate bequeathed to her under the will should be reduced to the extent of that payment. That Mary M. Watts, the plaintiff, loaned her father $2,000, and that he gave her his note as evidence of the obligation on his part to repay the money to her, is not questioned. That he was indebted to her at the time the will was made, this record leaves no doubt. Why he sought to discharge his obligation to her in this way is not apparent in this record. If