White v. White

This is an action brought for the purpose of obtaining a *240construction of the will of Henry Rudolph White, deceased. The will was executed on July 23, 1894, on which date the testator had five children then living. The will, after making various preliminary dispositions of property, contains the following clause:

“The remainder of my estate, real and personal, shall be divided equally between my children or their heirs share and share alike.”

One of the children of the testator by the name df Henry White died intestate on June 3, 1895, without issue, but leaving surviving him a widow, Rose White. On December 21, 1895, the testator, Henry Rudolph White, executed a codicil to his will, which codicil contains the following language:

‘ ‘ The sum of $88 lawful money of the U. S. bearing interest at 6 per cent, from the first day of July, 1895, till paid shall be paid to my daughter Carolina White, her heirs or assigns, out from the share of the inheritance of my son Henry White, deceased. The residue of said share shall be the only bequest to the heirs or assigns of said Henry White.”

Held: That under the terms and provisions of the will and codicil, the widow, Rose White, is entitled to receive the share which would have gone to her husband, Henry White, if he had survived the testator, less the sum of $88 and interest thereon as provided in the codicil.

This construction of the will is not changed by the extrinsic evidence offered. So much of that evidence as tends to show the situation, circumstances and condition of the testator and the natural objects of his bounty, is competent, the remaining portion of it we hold to be incompetent, and we cite the following cases: Lester’s Estate, In re, 115 Iowa 1 [87 N. W. Rep. 654]; Lincoln v. Perry, 149 Mass. 368 [21 N. E. Rep. 671; 4 L. R. A. 215]; Clark v. Hardwick Seminary (Tr2 Circ. Dec. 87 (3 R. 152).

A decree may be drawn construing the will in accordance with the views expressed in this opinion.