152 Iowa 707 | Iowa | 1911
Plaintiff and defendants entered into a written contract, whereby the defendants for a stated consideration agreed to convey to plaintiff by warranty deed certain real estate in Warren county, this state. By the terms of the contract, defendants agreed to furnish an abstract showing a fee-simple title to the property in said defendants. As part of the purchase price, plaintiff paid the defendants the sum of $200. It is claimed that defendants had no other than a life estate in said lands, and that the abstract furnished by them showed that they did not have a fee-simple title. Defendants tendered a deed and an abstract to the plaintiff, which he, plaintiff, refused to receive, but, on the contrary, elected to rescind the contract and demanded the return of the $200.00 already paid. The issue on this appeal is the nature and character of defendants’ title to the property agreed to be conveyed. If they have nothing but a life estate, the ruling on the demurrer is correct. On the other hand, if they have a fee the demurrer should have been sustained, and the decree should be reversed. Whatever defendants’ title, it came to them through the will of one Henry Nourse, deceased, who at the time of his decease was a resident of the state of Illinois, and was seised of certain land and personal property, and through a deed of the land from one James McGee, who derived whatever authority he had to convey from the aforesaid will. It is alleged that the consideration for this conveyance was paid by Hiram Wilson and James McBrown, executors of the will of Henry Nourse, and that the land was purchased
The clauses of the will relied' upon read as follows:
Third. I give, devise and bequeath unto my executors and executory trustees hereinafter named and to their successors as hereinafter specified in trust for the use 'of my daughter, Jane Nourse, during such time as she shall continue to 'be insane one-third of my estate that shall remain after the payment of all just claims and the bequest of two thousand dollars ($2000.00) hereinafter set forth to be managed and used for her benefit and support as long as she shall continue to be insane and in case she shall again become sane and of sound mind and memory then -this devise and bequest shall vest in her and her heirs absolutely, but in case of her decease before she shall so become sane and of sound mind, then all-that shall remain of said devise and bequest I do hereby give,, devise and bequeath to my grandchildren, Henry N. Mannington, Blanche E. Mannington, Ethel L. Mannington, and Anna A. Mannington, and in case of the previous decease of either of them then to the survivor or survivors of them and their heirs absolutely, subject, however, to any limitations. hereinafter made as to the time when it shall bes turned over to them.
Eourth. I do hereby give and bequeath the sum of two thousand dollars ($2000.00) to Mrs. Abby H. Mannington of Greneseo, Illinois.
Eifth. I do hereby give, devise and bequeath unto my said grandchildren Henry N. Mannington, Anna A. Mannington, Blanche E. Mannington and Ethel L. Mannington one-third part of my said estate after the payment of all just claims and the said bequest of two thousand dollars ($2000.00) and in case of the decease of either of them without issue then to the survivor or survivors of them, and in case of the decease of either of said grandchildren leaving a child or children living at the time of my
' And lastly, I do hereby nominate and appoint Hiram Wilson and Whitfield Sanford of Geneseo, Henry County, Illinois, my executors and executory trustees of this my last will and testament, hereby revoking all former wills by me made and confirming this and this only to he my last will, and I do hereby direct that no bond or security be required of them as such executors and trustees nor of the persons hereinafter named by me as their successors, but that this waiver extend to 'no other appointee by virtue of the provisions hereinafter set forth.
And I do hereby empower my said executors and executory trustees to collect by law or otherwise all debts and demands due or extend the same, make, execute, acknowledge and deliver all such'deed or deeds, contract or contracts, release or releases, lease or leases, and all such instrument or instruments in writing under seal or otherwise and to do all such acts or things as may be by them judged wise, just and convenient in and about the execution of this will and the management of the trusts herein set forth, including the power to sell and convey real estate in any place and the investment and loaning of money or purchasing real estate without as well as within the state of Illinois, and to make all divisions of estate herein provided for as equally as possible and do and perform, all and singular all such acts and things as would be lawful for me to do in the premises were I living and for the best interests of said estate, and in case the said Hiram Wilson shall for any cause fail to serve as such executor and executory trustee Until the final completion of the execution of this will and the trusts therein set forth, then and in that case I do hereby nominate and appoint his brother George Wilson to be his successor with like powers as hereintofore conferred upon'said Hiram Wilson, and in case the said Whitfield Sanford shall for any cause so fail as aforesaid, then and in that case I do hereby nominate
By the terms of a codicil duly executed, one James 'McBrown was substituted as executor in place of William Sanford. The deed from McGee to Manington recited a consideration of $9,263 paid to the grantor hy Wilson and McBrown, executors of the will of Henry Nourse; granted and-sold the ^ land in controversy consisting of four hundred and six acres to the grantee, and provided as follows:
To have and to hold the same unto the said party of the second part during his natural life, with power to devise the said lands or any part of them at any time after the said party of the second part shall attain lawful age,
It is alleged that the. purchase of the lands from McGee by the executors of the estate was pursuant to the provisions of the will and in virtue of the terms thereof, and that defendant took nothing but a life estate thereunder. From the paragraphs of the will heretofore set out, it will be noticed that the devise to the grandchildren, of whom defendant Henry Manington was one, is divided into three parts, one to be paid as these children should severally arrive at lawful age, another when they arrived at the age of 25, and the “third part shall be by said executors invested in productive real estate in severalty for their uses and the title so arranged that the said grandchildren or
instruments affecting real estate in this jurisdiction must be construed by the courts of this state. To this rule we have given our steady adherence. Loving v. Pairo, 10 Iowa, 282; Doyle v. McGuire, 38 Iowa, 410; Moore v. Church, 70 Iowa, 208; Franzen v. Hutchinson, 94 Iowa, 95; Manton v. Seiberling, 107 Iowa, 534; Lynch v. Miller, 54 Iowa, 516.
Doubtless the reason for this is that our recent cases so clearly settle the rule against him that no further argument can be offered in support of the contention. The point is ruled against him by Baldwin v. Morford, 117 Iowa, 72; Spaan v. Anderson, 115 Iowa, 121, and other like cases. He is driven, then, to a reliance upon the rule in Shelley’s Gase, and, if that be inapplicable, he must fail. The rule of that famous case has been so often stated and so clearly elucidated in Doyle v. Andis, 127 Iowa, 36; Brokaw v. Brokaw, 113 N. W. (Iowa) 469; Westcott v. Meeker, 144 Iowa, 311, that it is needless to repeat it.
Again, if the remainder to the heirs or heirs of body is in form contingent upon some event, the rule does not apply.' Nor is it applicable if there be an intermediate estate interposed between the life estate of the ancestor and the remainder to the heirs. See Fearne on Contingent Remainders, 29; Colson v. Colson, 2 Atk. 246. Another pre-requisite to the application of the rule is that the particular estate and the estate in remainder shall both be of the same kind; that is to say, both legal or both equitable. Loring v. Eliot, 16 Gray (Mass.) 568; Croxall v. Shererd, 5 Wall. 268, (18 L. Ed. 572) ; Green v. Green, 23 Wall. 486, (23 L. Ed. 75) ; Hanna v. Hawes, 45 Iowa, 437. If to the word “heirs” in the limitation of the remainder there is added a further limitation to “their heirs,” the courts are divided regarding the -applicability of the rule. The following announce the doctrine that the rule applies: Andrews v. Lowthrop, 17 R. I. 60, (20 Atl. 97) ; 2 Jarman on Wills, 1205; Fearne on Contingent Remainders; contra, De Vaughan v. Hutchinson, 165 U. S. 566, (17 Sup. Ct.
But, as there may be some doubt in view of the conflicting authorities upon this proposition, we shall consider and determine the case upon other propositions, which we regard as controlling. In Zuver v. Lyons, 40 Iowa, 510, we said: “If the estate limited to the ancestor be a trust estate and the subsequent limitation to his heirs carries the legal estate, the two will not unite in the estate of inheritance in the ancestry, but the limitation to the heirs will be a contingent remainder.” This was quoted in Hanna v. Hawes, 45 Iowa, 437, with approval, and held applicable to a will containing the following paragraph: “To my daughter, Sarah Little, wife of Sylvester Little, I give the sum of $2,000 to be invested in lands for my said daughter to have the income of the same during her life and' at her death to go to the heirs of her body.” In conformity with this provision, the executor of the will in that case conveyed certain real estate to Sarah Little, describing the source of title and using for the,habendum clause the following: “To have and to hold the said premises with the appurtenances unto the said Sarah Little, wife of Sylvester Little,, her
The testator did not give Sarah Little $2,000 absolutely to be used and controlled at her will and pleasure, but the devise was coupled with the charge that it should be invested in lands, the income derived from which she only could use and have the benefit of during her life, and at her death the lands were to become the property of the heirs of her body, if any such there were. No direction was given as to whom the title to the lands should be vested in during the life of Mrs. Little. The form in which the thing intended by the testator was to be done was left to the discretion . of the executor. The substance of the devise to Mrs. Little was that she should have the income during her life of $2,000 worth of land, or, in other words, of land purchased with the $2,000 set apart by the will for that purpose. The executor was charged with a trust, a due execution of which required that he should see that the money was invested in lands, the income of which should be vested in Mrs. Little for life, and the title to vest in the heirs of her body, if any such there were at her death. If the executor in the execution of this trust had vested the legal title to the land in John Doe, charged with the trust to permit Mrs, Little to receive the income during her life, and at her death to convey the title to the heirs of her body, the case would have been identical in principle with Zuver v. Lyons, 40 Iowa, 510. ... A trust estate being ■created by the will, the executor had no power to enlarge or restrict whatever estate was so created. It is also apparent that he did not do so. The conveyance made by him sufficiently shows that he designed and intended thereby to carry out in good faith the trust, and this only he had the power to do. As between the parties to this estate, he did not have the power or authority to vest the legal title to the lands in Mrs. Little, discharged of the trust. Whatever estate she took was charged with the same trusts it would have been if the conveyance had been made to any other person. Conceding the rule in Shelley’s Case to be law in this state, it .is not applicable, because the testator did not vest the legal estate in Mrs. Little with a limitation over to the heirs of her body.
The judgment must be, and it is, affirmed.