291 N.W. 465 | Iowa | 1940
F.C. Heckmann died January 19, 1926, testate, leaving surviving him Lana B. Heckmann, Dora Heckmann, and George Heckmann. His will, dated November 10, 1925, and duly admitted to probate, provides first for the payment of debts and funeral expenses, and second, bequeaths 40 acres of land to his son, George. Paragraphs 3 and 4 are as follows:
"3 — All the rest, residue and remainder of my estate real and personal which I now own or may hereinafter acquire, I give and bequeath to my two daughters Lana and Dora jointly in equal shares, that is to say to each an undivided one-half thereof, and I ask that the Court shall appoint my daughter Lana Heckmann to be and to qualify as GURDIAN for my daughter Dora and that Lana have and assume complete charge of her affairs and to care for her during her like-time and after the death of said Dora all that property remaining after the *970 last sickness and funeral charges are paid shall go and is hereby conveyed to my said daughter Lana Heckmann.
"4 — I name constitute and appoint my said daughter Lana Heckmann to be the Executrix of this my last will and testament and direct that no bond be required of her by any court or judge."
The land which passed under item 3 of the will consists of 140 acres. The daughter Dora is incompetent, and after her father's death she lived with her sister Lana, who had charge of the farm and also owned a farm of her own which she had purchased prior to the death of her father.
On May 29, 1931, Lana executed and delivered to W.H. Brenton, who later assigned it to the Brenton State Bank, a mortgage on real estate, including the 140-acre farm, "subject to the life estate of Dora Heckmann in and to the undivided one-half interest in and to the * * * 140 acres." This mortgage was foreclosed and decree entered March 8, 1937. Under proceedings on an application to the bankruptcy court under the Frazier-Lemke Law, 11 U.S.C.A. § 203, a trustee's deed issued to the Brenton State Bank for the 140-acre farm on November 21, 1938, subject to "whatever interests Dora Heckmann may have in said property under the last will and testament of Fred C. Heckmann."
At the time of the bringing of the present actions unpaid taxes had accumulated to the amount of $1,167.33. On August 26, 1938, the plaintiff in the equity proceeding (the Brenton State Bank) filed its petition in partition, naming as defendants Dora Heckmann, Lana B. Heckmann, guardian of Dora Heckmann, Lana B. Heckmann, William Hungate and Mrs. William Hungate (tenants), and Polk county, Iowa, and asking a decree establishing and determining the rights of the parties, confirming shares and interests; sale of the premises and division of the proceeds; appointment of a referee and receiver; and general equitable relief. Answer was filed by the defendant Lana and the guardian ad litem appointed for Dora. Thereafter, on November 7, 1938, Dora, by Lana her guardian, *971 filed petition asking construction of the will, claiming that the interest of Dora was under a joint tenancy; that on account of personal services required to be rendered by Lana B. Heckmann which had not yet been performed said Lana had not acquired any interest in the land which she could alienate, and that the real estate in controversy constituted a trust. This application on behalf of Dora was resisted by the Brenton State Bank, plaintiff in the equity proceeding. A motion to strike the bank's resistance to the application for interpretation was overruled by the court, and by agreement of parties the two cases were tried at the same time and separate judgment and decree rendered. In the equity proceeding the court found that Lana had the right to and did alienate her interest in the property, and that such alienation could not affect the rights of Dora to have the property held intact as a unit for her benefit. The court further found that Lana had no interest in the property, and that one of the undivided halves of the real estate was devised in fee to Lana and that Dora has no right or title therein nor any charge thereon except the right to have it operated in conjunction with the other undivided one-half interest. By the decree Dora was adjudged to be the owner of a life estate in one undivided one half, with the right of operation as above stated in conjunction with the other undivided one-half interest, and the right to one half of the income from the land operated as a whole; and her undivided one half is also subject to the payment of the expenses of her last sickness and funeral. The decree fixed the ownership in the plaintiff Brenton State Bank of all the balance, residue, and remainder of the real estate, and determined its right to receive during the lifetime of Dora Heckmann, after the payment of one half the taxes and tax liens, insurance, and repairs, one half of the income from the land operated as a whole; and after the death of Dora the Brenton State Bank is decreed to be the owner in fee of all the real estate. In the order in the probate proceeding item 3 of the will is construed as devising to Dora Heckmann a life estate in an undivided one half of the property, with the right to have her *972 undivided one half operated during her lifetime in conjunction with the other undivided one half; and a charge was created by the will against the remainder of this undivided one half in which Dora was given a life estate, for the payment of her last sickness and funeral expenses. The order further construes the will as granting all the balance of the real estate to Lana B. Heckmann.
From the decree in the equity case and judgment in the action to construe will, Lana B. Heckmann, for herself and as guardian, appeals. From that part of the decree giving to Dora Heckmann the right to have her life estate in the undivided one half operated during her lifetime in conjunction with the other undivided one half, and the right to receive during her lifetime, after the payment of one half the operating expense, one half of the income from the land operated as a whole, and denying sale and division of the proceeds at this time, the Brenton State Bank appeals. For convenience, however, the defendants in the equity case and the plaintiffs in the action for construction of the will will be designated as appellants, and the Brenton State Bank as appellee.
[1, 2, 3] The first ground of objection to the judgment and decree of the court by the appellants is that the court erred in construing and adjudicating the testator's intention to have been merely the creation of a life estate in an undivided one half of said real estate to Dora. The appellants claim that it was the testator's intention that the two daughters should hold in joint tenancy, and that the will should be construed that the land should go to his two daughters and that neither one nor the other could hold any part of it singly; and that the purpose and intent of the testator was so to devise his said real estate as to prevent alienation of the interest of either daughter by herself or by anyone else. Appellants also claim that the court erred in adjudging the title to all of said real estate to be a fee in the daughter Lana. Appellants argue at considerable length that paragraph 3 of the will, heretofore set out, created a joint tenancy. The cases cited by appellants do not *973
bear out this contention, as in the authorities cited the joint tenancy was expressly created and there could be no question as to the nature of the estate. An examination of the two Iowa cases cited indicates the same. Wood, Admr., v. Logue,
"I give and bequeath to my two daughters Lana and Dora jointly in equal shares, that is to say to each an undivided one-half thereof, * * *."
The words "to each an undivided one-half thereof" explain just what the testator intended when he devised the land. We think the devise comes within the rule of In re Guardianship of McCauley,
The rule in this state is that estates vested in two or more persons are to be deemed tenancies in common unless a different intent is clearly expressed in creating the estate. Code 1935, section 10054. The rule has long been recognized in this state. Hoffman v. Stigers,
[4] But appellants argue that the provisions of the will, in addition to creating a joint tenancy, were coupled with a charge upon the land of personal service and support, which would prevent the alienation of the interest of either daughter in said land. The cases cited by appellants are not persuasive. The will was carefully analyzed by the trial judge, and in an opinion too long to quote here, he held — as we feel impelled to hold — that the provision of the will that Lana have and assume complete charge of Dora's affairs and care for her during her lifetime, referred only to the property taken by Dora and that the affairs referred to were only in respect to her inheritance under the will. This was not a condition attached to Lana's devise, and the district court held — and we hold — that the authorities cited by appellants refer only to the avails of property granted by specific terms and upon which conditions such property was held. Our interpretation is that half of the property went to Lana, and the other one half went to Dora to be used for her support during her lifetime, and we think the language of the will plainly so indicates. We can refer to only a few of the cases cited by appellants. McKnight v. McKnight,
Considerable testimony was offered as to the intention of the testator. This was taken subject to objection. We doubt if any of it was competent, but even if so, it would add very little to the interpretation of the will. See Bradford v. Martin, supra, and cases therein cited.
[5, 6] Appellants devote some space to the theory that by the will a trust was established in Lana for the benefit of Dora and herself, and that the court was in error in not so holding. We see nothing in the will that would justify such a conclusion. The language does not so indicate, the devise being to Lana and Dora, and there is nothing to indicate a constructive trust. The appellants cite Dunn v. Zwilling Brothers,
[7] Appellants further claim that the Brenton State Bank had no right nor authority to join in the action for the construction of the will. Authorities cited refer only to cases where a mere creditor was not permitted to join, but as grantee of Lana Heckmann, the appellee bank had such an interest, was so claiming and was so adjudged, and at the time of the beginning of the litigation the appellee held a certificate of sale to the land and later held a trustee's deed. It plainly had a direct interest in the result of the litigation, and courts have permitted parties with such interest to carry on this form of litigation. See Howard v. Smith,
[8] In support of appellants' contention that the court erroneously permitted the partition of real estate at some future time, they base their argument on the fact that, as they allege, the terms of the will preclude partition. This is a matter which, of course, could not be raised in the suit for construction of the will. It is referred to, however, as applying to the decree. In the case of Elberts v. Elberts,
"In many cases, there might be a tenancy for life of part of the premises. The statute is applicable to such tenancies."
Courts naturally hesitate to decree partition where there are outstanding life estates, but it is done in order to secure *977
the preservation or protection of the estate. See the recent case of Anderson v. Anderson,
In reference to the first part of the appellee's objection, an examination of the will indicates that the interest given Dora was not only an undivided one half but a right to have it used in connection with the other half. We have held that there was no lien for support on any part of the land, but the right of use given, being deemed by the testator to be for the best interest of the devisee and the best manner of use of the land, is entitled to consideration; and the appellee in taking the interest of Lana in the land took it with the provision that it should be so used. The appointment of the receiver by the court was to secure both to Dora and to the owner of Lana's undivided one-half interest a proper share of the profits. If the manner of use of the property is not to the best interests of the parties they are protected by the provision in the decree which reserves the right to make disposition of the land at some future time should occasion or necessity therefor arise. *978
We think the court, under the somewhat involved issues of the case, and considering the condition of the property in question at the time, made an equitable disposition of the matters in issue. We therefore hold that this cause should be affirmed on both appeals. — Affirmed.
HAMILTON, C.J., and MITCHELL, STIGER, SAGER, BLISS, OLIVER, and MILLER, JJ., concur.