178 Iowa 1374 | Iowa | 1917
There is but little, if any, conflict in the testimony, although there is some controversy as to the competency of some of the evidence. Some of the persons named in the will of Mr. Jackman have since deceased, but it is unnecessary to a determination of any question raised here to set out their heirs or their wills. Some of the parties are husbands and wives of those interested in the estate.
The will of David K. Jackman was admitted to probate in New Hampshire, August 13, 1877, and in Kossuth County, Iowa, September 14, 1914. H,e died seized of lands in the states of New Hampshire, Pennsylvania, Illinois and Iowa. His will provides:
“I. I give, devise and bequeath all my real and personal estate of every kind and description wherever found and however situate to my beloved wife, S. R. Jackman, for her use and enjoyment during her natural life, and -after her death all the remaining property is to go to my beloved children, viz.:
'•‘But in case my aforesaid wife, S. R. Jackman, shall remarry, then she shall have one third of the net income of all my real and personal estate in lieu of the bequest aforesaid, and after her decease said third of the income of my real and personal estate shall go to my children aforesaid.”
. The widow was appointed executrix, along with another, and qualified, and continued to act until she became sole executrix, and until her death she acted as executrix, from 1877 to 1914, a period of thirty-six years. At her death, an administrator, with the will annexed, de bonis non, was appointed in the David K. Jackman estate, and Allison W. Jack-man and Frank ITasbrouck, the executors named in her will, were appointed as executors of her estate. This last appointment was made in New York, in May, 1914, and in Iowa in September, 1914. During her life, the widow continued to receive all the rents and profits from the David K. Jackman estate, and she made many expenditures for said estate, some of which were,for attorneys’ fees and expenses in quieting title in David K. Jackman and his estate, — some of which actions were before Mr. Jackman died, and one after, — and for taxes, etc. It seems that no part of such expenses were charged to the widow.
At the time the. will of David K. Jackman was made and probated, the laws of New. Hampshire provided:
“No widow shall be entitled to any dower in any lands, unless the same were, during the marriage and seizin of the husband, in a state of cultivation, or were used or kept as a wood or timber lot, and occupied with some farm or tenement owned by the husband.
. “The widow of any testator deceased leaving lineal descendants, if there is no settlement nor any provision made for her in his will, or if she shall waive such provision, shall be entitled, in addition to her dower and homestead, to a portion of the personal estate equal to that which a child would receive if such estate were equally shared between the*1379 widow and the children then surviving or leaving issue, not exceeding in any ease one third of such estate.” Gen. Stat. of N. EL, 1867, Ch. 183, Secs. 3, 12.
Plaintiffs objected to the introduction of the New Hampshire statute, on the ground, substantially, that the action involves real estate situated in the state of Iowa, and that the laws of New Hampshire are immaterial, because the rights of the parties to lands situated in Iowa .must be determined by the laws of this state. It is conceded that none of the lands referred to in this action were in a state of cultivation or used or kept as wood or timber lots, etc., during the lifetime of David K. Jackman.
There were numerous provisions in the will and codicils of the widow, and a residuary clause by which the widow bequeathed and devised all the rest, residue and remainder of her property, of every name and nature, to her surviving children, naming them. These parties so named are plaintiffs in this action. The will of the widow was admitted to 'probate in the state of New York in 1914.
It will be necessary to set out some other facts, in regard to the account of the executors filed in the courts of the state of New York, and the effect of such report; also in regard to the amendment to the petition and the setting aside of the interlocutory decree; but, to avoid repetition, these matters will be referred to in discussing the points argued in reference thereto.
1. It is conceded, as it must be, of course, that the intention of a testator must govern in the construction of his will. It is contended by appellants that, in ascertaining the intention of a testator, courts are not confined to an examina-, tion of the will alone (citing In re Estate of Freeman, 146 Iowa 38, at 44.) The larger part of the argument — and this seems to be appellants’ principal contention in the case — is that, in determining whether the widow took a one-third interest in addition to the life estate, the laws of New Hampshire control. Appellants contend that the intention must
On the other hand, it is contended by appellees that, as to .real property situated in Iowa, the construction of this will and the effect,of the provision in favor of the widow, whether it is in addition to or in exclusion of distributive share, must be determined by the laws of the state of Iowa and without regard to the laws of New Hampshire. They cite: Acker v. Priest, 92 Iowa 610, 616; Jennings v. Jennings, 21 Ohio State 56; De Vaughn v. Hutchinson, 165 U. S. 566, 570; In re Estate of Washburn (Minn.), 20 N. W. 324; Van Steenwyck v. Washburn (Wis.), 17 N. W. 289, 296; Appeal of Clarke (Conn.), 39 Atl. 155; Jacobs v. Whitney (Mass.), 91 N. E. 1009, 1011; Pratt v. Douglas, 38 N. J. Eq. 516; Van Wickle v. Van Wickle (N. J.), 44 Atl. 877; Minot v. Minot, 45 N. Y. Supp. 554. See also Putbrees v. James, 162 Iowa 618, 626 (bottom). They cite the same cases, and Lyndon Lbr. Co. v. Sawyer (Wis.), 116 N. W. 255, Nelson v. Potter (N. J.), 15 Atl. 375, to the point that the laws of New Hampshire have no operation upon, and the courts of New Hampshire have no jurisdiction of, the title of lands in Iowa. And they quote from McGoon v. Scales, 9 Wallace (U. S.) 23, 27:
‘ ‘ It is a principle too firmly established to admit of dispute at this day, that to the law of the state in which land is situated, must we look for the rules which govern its de*1381 scent, alienation and transfer, and for the effect and construction of conveyance.”
They also cite, in support of this proposition, the further cases of Lynch v. Miller, 54 Iowa 516; Robards v. Marley, 80 Ind. 185; 32 Cyc. 674 ; 40 Cyc. 1384; and some of the cases before cited.
We shall not attempt a review of these cases, because we regard the law as settled in this state, and in accordance with plaintiffs’ contention, as to the real estate now in question. It may be that in some cases, as to the construction of a word or a phrase in a will, as to testator’s intention, the law of the state of the domicile of deceased should control. Appellants cite on this proposition, among other authorities, 40 Cyc. 1382; Keith v. Eaton (Kans.), 51 Pac. 271.
The citation from Cyc. just given has reference, for the most part, to personal property, although it is said that, so far as concerns the ascertainment of the testator’s intention, this rule applies even though the will disposes of real property; and it is further said in the same connection, at page 1383:
“But as to the operative effect of the will, and the rights of the parties thereunder, its construction as to personalty is governed by the law of the testator’s domicile at the time of his death, and as to the disposition of real estate, or the creation of any interest therein, by the law of the place where the property is situated.”
It is thought by appellants that the fact that testator lived in New Hampshire, and was presumably familiar with the laws of that state, is a circumstance to be considered as bearing upon the question of his intention. But the force of this is weakened by the fact that testator owned lands in three other states, where the law as to a widow’s dower rights might be entirely different from the law of New Hampshire; and it is so in Iowa. But, after all, it is not so much a question, in the instant ease, as to the construction of the will, which seems to be plain, but as to its effect in Iowa on lands
It should be borne in mind that, in the instant case, it is a question of the devolution of title to lands in Iowa. The question is whether, under the will of David K. Jackman, and under the law as it existed at that time, the widow is entitled to take one third of the real estate in addition to the life estate, or whether she takes only a life estate, with the remainder over to persons named in the will of David K. Jackman; and as to such question, and as to the estate or title the widow takes under the will and law, the laws of Iowa control. Some of the cases cited by appellants hold that the rule is as they contend in regard to personal property, but that the rule is not the same in regard to real estate. This is doubtless for the reason that the situs of personal property is ordinarily supposed to be where the owner has his domicile. This is doubtless on the theory that, if he does not have the actual possession of it at his domicile, he will ordinarily be able to obtain possession of it. But such is not the case in regard to real estate. We are of the opinion that the trial court rightly determined this point.
The enjoyment by her of the life estate did not constitute an election to take under the will. On this, appellees cite Byerly v. Sherman, supra; In re Stevens’ Estate, supra; Thorpe v. Lyones, supra.
The fact that the widow acted as exeeu- . . . tnx is not sufficient to constitute an election.
Putbrees v. James, 162 Iowa 618, 628.
We have held that the widow’s election may be made in different ways, but that it must be made of record in some way, unless the facts are such that she is estopped. See eases cited in Putbrees v. James, supra.
It is thought by appellants that the will in the instant ease was such that the widow was put to her election whether she wou]d take a life estate under the will, or a third under the law. This we do not determine, because, conceding it to be true, the facts relied upon by appellants as constituting such election are not sufficient. The facts relied upon by appellants as constituting such election were acts of the executors of her will in a report filed by them, setting up an account of the widow as sole surviving executrix of the will of her husband. This account set out the dealings of said widow with the estate. In the account referred to, it appears that the title to the Iowa lands was quieted in Mr. Jackman or his estate, some before Mr. Jackman died, and one piece after he died, and that the expense of this last action was paid by Mr. Jackman’s estate. The other expenses in connection with such actions were also paid by the estate. It is further stated in the account that all these lands were still
“They submit the same to this court with all other knowledge obtained by them from other sources, in order that this court may ascertain and fix the amount of estate now on hand, and with which these plaintiffs should be charged as executors of Seraphina R. Jackman.”
The executors state:
“Concerning some of these entries they have no personal knowledge, but they submit them to the court, and upon information and belief they will say that said disbursements were actually made for the benefit of the estate, and that the court, in ascertaining and fixing the amount of the estate of David K. Jackman in the hands of the plaintiffs herein, as executors, should give due and proper credit for such disbursements. ”
The estate of David K. Jackman was never settled during Mrs. Jackman’s lifetime. Taxes were paid, but it does not appear what the total amount of taxes was, nor what Mrs. Jackman’s purpose was in paying them or in mailing settle
The account appears to be a report by the executors of the widow as to her personal property, and to fix the amount with which the executors should be charged. Clearly, this does not show an election by the widow made of record. We held, in Putbrees v. James, supra, at page 629, that the filing of a referee’s report in New York was not sufficient to show an election by a widow in regard to lands in Iowa, and that it was not proper that such an election should be made in the courts of New York. We said:
“It was not sufficient to file it in New York, and it was not made by the widow; there is no evidence that it was recorded anywhere.”
3. Though we do not understand appellants to make the point, it has been held that the rights of the widow to her third may be asserted by her devisees, the plaintiffs. Thorpe v. Lyones, supra; Archer v. Barnes, supra; Parker v. Parker, supra.
But we think the negligence of the attorney, if there was any, was not such culpable negligence as to deny to the clients relief, and that the shoviing was sufficient. It must be remembered that this is a petition suit, and that the decree entered was an interlocutory one. We shall not attempt to set out all the record on this point. Briefly, it appears that the attorney who prepared the original petition was ignorant of the true facts and of the rights of the parties, and the allegations thereof were made by the attorney under mistake and misapprehension. The information was furnished to him by an abstracter, a party other than the plaintiffs. The information so given by the abstracter was verbal, and the attorney did not have an abstract. Later, he received a copy of
A discretion was lodged in the trial judge as to setting aside the decree, and we are of the opinion that there was no abuse of such discretion. As bearing upon this proposition, see Farmers Exchange Bank v. Trester, 145 Iowa 665.
Surely, no one has been prejudiced by the proceedings. The contention of appellants at this point is so clearly without merit that we shall content ourselves with stating appellees’ propositions and the authorities cited in support thereof, without further discussion. The propositions advanced are that the decree was interlocutory, and in the breast of the judge until final judgment was entered, and subject to amendment; that such a decree in partition is under the control of the court until final judgment, and may be modified ' or rescinded even after the term; that the right to amend in
They say, also, that, because defendants were notified of the application to vacate the interlocutory decree and appeared thereto, and because -the record was never signed by the judge, and the record entry made in vacation, the court had authority to vacate this decree, to permit the amendment and to direct a hearing- upon the merits, citing Code Sections 242, 243; Bosch v. Kassing, 64 Iowa 312; First National Bank v. Flynn, 117 Iowa 493, 496; McConnell v. Avey, 117 Iowa 282; Hamill v. Schlitz Brewing Co., 165 Iowa 266; National L. & I. Co. v. Bleasdale, 159 Iowa 529; In re Assignment of Wilson, 138 Iowa 225; Lambert v. Rice, 143 Iowa 70.
Another proposition of plaintiffs’ is that their attorneys had no authority to waive or modify the interests of the plaintiffs in the lands in controversy, and that, if they had such authority, they did not so intend, and the allegations of the petition and the provisions of the first decree constituted such a mistake as entitled plaintiffs to have the record entry expunged and the cause opened, citing Barthell v. Roderick, 34 Iowa 517; Stewart Lumber Company v. Downs, 142 Iowa 420, 424; Ennis v. Fourth Street Building Assn., 102 Iowa 520; Peterson v. Koch, 110 Iowa 19; Craig v. Craig’s Estate, 167 Iowa 340; Partridge v. Harrow, 27 Iowa 96; Logan v. Southall, 137 Iowa 372; County of Buena Vista v. I. F. & S. C. R. Co., 49 Iowa 657; Farmers Exchange Bank v. Trester, 145 Iowa 665.
There is some argument on the question as to the admissibility of evidence, and perhaps some other matters, but the cause was tried as in equity, and the evidence admitted subject to objection. These other matters are of minor impor
It is our conclusion that the decree of the district court was right, and it is, therefore, — Affirmed.