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Walton V. Ambler et al. Same V. Doll. (Supreme Court of Nebraska. May 80,1890.)
Maxwell, J. This action was brought by the plaintiff against the defendants for partition, and to confirm her title to one-sixth part of 120 acres of land which formerly adjoined, but now is a part of, the city of Omaha. On the trial of the cause the court found the issues in favor of the defendants, and dismissed the action.
The testimony shows that on July 16, 1873, Daniel Phillips, the father of the plaintiff, being then a resident of Mt. Pleasant, Henry county, Iowa, died, leaving a last will and testament as follows:
"I, Daniel Phillips, being of advanced age and weak of body, but of sound and disposing mind and memory, and considering the uncertainty of my present life being much prolonged, do make and publish this, my last will and testament, as follows:
"Item 1st. I give and bequeath to my widow, Nancy Phillips, the sum or $350.00 a year as long as she shall live as In accordance with an antenuptial contract or agreement existing between myself and her, and which sum is to be paid in semi-annual payments of $175.00 each, payable In the two months of January and July of each year, as long as she lives, and to be payable out of dividends of bank-stock hereafter provided. The. said annual allowance is In full and in lieu of all demands by contracts, and as heir or as widow, and of all dower, homestead, or other interest of her in or growing out of my estate, real or personal, In any manner in my estate.
"Item 2nd. It Is my will that, as soon after my death as conveniently can be or may be, all sums not herein remitted, or hereby bequeathed, due or owing to me in any manner, be collected by my executors, and from the money on hand and said collections (from said fund) there be paid: First, to my daughter Louisa P. Ambler the sum of $400.00, making $0,000.00. To my daughter Catherine Beard the sum of $4,000.00, making $6,000.00. 3rd. To my daughter Miranda McCleary the sum of $2,000.00, making $6,000.00; $1,000.00of which $2,000.00 I design to be paid this summer. 4th. To my daughter Frances Walton the sum of $1,000.00, making $6,000.00. 5th. To my daughter Areta Depew the sum of $3,200.00, making the amount of $6,000.00. 6th. To my daughter Mary Hoover the sum of $1,900.00, making $6,000.00.
"Item 3rd. I give and bequeath to my granddaughter Penelope E. Ambler $2,500, to be arranged by Henry Ambler and to her satisfaction both as to its time and manner of payment. 2nd. I give and bequeath to my grandchildren Harry Beard and Minnie Beard the sum of $1,000.00 each, to be paid to them on their arriving at majority, respectively; the Interest accruing thereon In the mean time to be paid to my daughter Catherine Beard in addition to the other bequests to her herein provided for.
"Item 4th. (As to my real estate.) 1st. I give and devise to my granddaughters Irene Lebmer and Fanny Clementine McClure the following real estate, situated in Madison county, Iowa, viz.: The N. E. quarter of the N. W. quarter of section 28, in township 74 N., of range 26 west, 40 acres, 2nd. The balance of my real estate, all and singular, I give and devise as follows: To be placed in the hands of my executors, they to take charge of, and dispose of, and convey as to them may be seen best, and the proceeds thereof, after paying all just and reasonable expenses and charges growing out of the management and disposition thereof, is from time to time to be distributed by them among my said six daughters, Louisa P. Ambler, Catherine Beard, Miranda McCleary, Frances Walton, Areta Depew, and Mary Hoover, equally, subject, however, to the provisions In this will relating thereto. Said funds to be distributed semi-annually, or as often as funds arising from sales of said lands may accumulate. 3rd. If, at the expiration of four years, any part of the said real estate remain unsold, the part so remaining shall be subject to distribution the same as said funds would be distributed arising from the sale, and as hereinafter provided.
"Item 5th. It is my will that the stock which I may have at the time of my death in the First National Bank of Mt. Pleasant, Iowa, together with the surplus or other interest that Is or may be attached thereto and remain undistributed until the expiration of its present charter or articles of association, until it is wound up, and In the mean time to be subject to the management of my executors who shall represent it, and from the dividend they shall pay: 1st. The semi-annual payments in the will provided to be paid to my widow. 2nd. To pay all taxes existing against any part of my estate remaining undisturbed. 3rd. The remainder is to be (divided and) distributed the same as the fund arising from the sale of my real estate is under this will to be distributed, and the fund arising out of the winding up of said bank and coming to my estate is to be distributed in like manner.
"Item 6th. Any such legatee or devisee dying, leaving no living issue, the undisposed-of part (distributed or undistributed, arising from either the real or personal property or stock or any source) that has come, or would have come, to such person so dying, under this will, shall go to the sisters (my daughters) remaining, and to their issue, If dead, respectively, and be. as to such part of said person's share remaining in her name or undistributed, as if such person so dying without issue had not been living or named in this will, and as if her share had been divided among the other sisters. Should the legatee or devisee dying leave issue, the undisposed-of balance received and still held by the mother at the time of her death, together with her undistributed part, shall, if undisposed, go to her issue; but, should all of such issue die without issue, then what they took, as far it remains unconsumed, shall go as it would have gone had their mother died without issue, and the number of said six been so reduced, and amount coming to them, respectively, correspondingly increased. But the foregoing item 6 does not apply to the bequests to my granddaughters made in this will.
Item 7th. After paying the said sum to my widow as hereinbefore provided, and the specific legacies and bequests and devises In this will, and as provided therein, the proceeds of the entire remainder of my real estate and personal, and any undistributed remainder (existing remainder) at the time of winding up my estate, whether real or personal, or both, is to go to my said daughters as and according to the terms of this will, and according to the aforesaid rule of distribution and descent.
"Item 8th. All sums heretofore given by me by way of advancement, or received by
my said daughters or by their husbands from me in any manner, and all demands against these daughters or their husbands, or any of them, whether by note or otherwise, and all contracts or agreements by which any demand against them by me or my estate might arise, and any demands which I may have lifted for any of them, are hereby canceled and to beheld for naught, and to be delivered up to them, respectively, the same having been taken into consideration by me in fixing the respective allowances, and are fully discharged; and all notes in their hands are hereby released to them, respectively.
"Item 9th. I do hereby constitute and appoint Henry Ambler and John B. Lash executors of this, my last will and testament, and of my estate, and they are hereby authorized to settle and adjust all matters connected herewith, and also to do all things in this will provided to be done by my executors, and to pay over and distribute as in this will provided, without any order of court for so doing, taking the receipts from time to time, and the final release of the respective parties and legatees and devisees, and to make settlement with them when the same can be done, and to make all conveyances herein contemplated, and without requiring any order of sale or distribution, there being no debts that would interfere therewith. Or they may apply to the court for any order, judgment, or decree that may be necessary to carry out the provisions of this will according to its true meaning and intent, or in settling up the estate, and directing them also to pay to Asbury M. E. Church, for me and my widow, $6.25 per quarter for two years, In all $50.00 to be paid during the two years.
"In witness whereof, I, Daniel Phillips, have signed this, my last will and testament, as such, and in presence of the witnesses by me chosen, and have requested them to sign the same as witnesses in my presence and at my request, this 12th day of June, in the year of our Lord one thousand eight hundred and seventy-three."
In October, 1873, this will was duly admitted to probate in Henry county, Iowa…….......
Source: The Northwestern Reporter, Volume 45, Containing All The Decisions Of The Supreme Courts of Minnesota, Wisconsin, Iowa, Michigan Nebraska, North Dakota and South Dakota, May 3 to July 19, 1890; Pgs. 932-936