In re Estate of Smith
In re Estate of Smith
Opinion of the Court
This case involves the proper construction of the codicil to a will.
It appears that, on the 20th day of June, 1908, J. D. F. Smith, an attorney at law at Cherokee,,, Iowa, made his last will. In the first and second clauses, he provided for the payment of his debts and the costs and expenses incurred in his last sickness, death, and burial. In the third clause, he gave to his son, Claud M. Smith, the sum of $5.00. In the fourth, he devised and bequeathed all the rest and residue of Ms property to Ms four daughters. Thereafter, on the 20th day of November, 1917, he made a codicil to this
“It is my desire and I so direct, that my son, Claud M. Smith, have in addition to the property devised to him in my last will and testament, to which this is my first codicil, all of my law library, and all the contents of my office including the safe used in my office, books of account and promissory notes belonging to me.”
It appears that, at the time J. D. F. Smith died, he had on deposit in the First National Bank of Cherokee, Iowa, $1,050; that he had a bank book showing this amount on deposit in the bank; and that this bank book was in the safe in his office, referred to in the codicil. J. D'. F. Smith was in the active practice of law at the time the will and codicil were made, and no doubt kept “books of account,” in which were recorded dealings with his clients. He was a lawyer of ability and learning, and understood the use of the English language, and there is no doubt that he intended, by this codicil, to pass to his son, who is also a lawyer, all his law library and all the contents of his office, including the safe in the office and these “books of account.” There is no question that all “books of account” kept by him in his business passed to his son under this codicil, and there is no claim made to the contrary. The son, however, claims that the words “books of account” included a bank book, showing a deposit of $1,050 in the First National Bank of Cherokee. The only question which we are required to determine is whether or not this money, shown by this bank book to be on deposit in this bank, passed to Claud M. Smith, by reason of the use of the words “books of account” in this codicil. To say that the bank book passed under the designation “books of account,” and not money shown by the book to be on deposit in the bank, would not satisfy the contention here made. To satisfy the contention made, we must
“I give and bequeath to my son, Claud M. Smith, the sum of $5.00, and all of my law library and all the con
Reading them both together, the money bequest was limited to $5.00. It he had intended to give him more than $5.00 in money, the codicil would have said so. The words “books of account,” therefore, could not have been intended to mean a sum of money deposited in the bank, in addition to the $5.00 originally bequeathed him. To hold that the bank book was included in the words “books of account” would be useless, unless it is further construed to mean that, by the words “books of account,” he intended to give the defendant the further sum of $1,050 on deposit in the bank. The intent of the testator is controlling. The language used must be construed as a whole, and must be so construed as to make effectual the evident intent and purpose of the testator. If he had intended to give to his son this $1,050’ on deposit in the bank, in addition to the $5.00 originally bequeathed him in the will, his purpose could easily have been made manifest, and not left to speculation or conjecture. Taking the will as a whole, we think that the thought of the testator, in the use of the words “books of account,” was mot to include money in the bank, though evidenced by a; bank book.
We have no cases to cite directly in support of what we have said, but, as bearing upon the question we have discussed, see Wyatt v. Norris, 66 W. Va. 667 (66 S. E. 1016); Koss v. Kastelberg, 98 Va. 278 (36 S. E. 377); Abbott v. Kerrigan, 1 Cal. App. 521 (82 Pac. 549).
Our conclusion is that the court did not err in- holding that the money in the bank did not pass, under the codicil in the will, to Claud M. Smith, and the case is, therefore, — Affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.