148 Iowa 288 | Iowa | 1910
Conrad Mohn died testate October 29, 1891, and his will was admitted to probate at the March, 1892, term of the Jones county district court. He left surviving his widow, Elizabeth Mohn, plaintiff in the present action, Philip Mohn, now deceased, John F. Mohn and William Mohn, interveners, and Minnie Mohn Murfield, one of the defendants, sons and daughter, his sole and only heirs at law. The widow is still living and unmarried. Philip Mohn died on or about October 9, 1906, ■ leaving surviving his widow, Lottie Mohn, and Ora Kussell Mohn, Conrad Mohn, and Minnie Mohn, defendants, his children. Since his death there was born to his widow a daughter, Florence June Mohn, who is also a defendant.
The will of Conrad Mohn, which lies -at the bottom of this controversy, reads as follows:
1st. I, order and direct that all Just debts shall be Paid out of my Estate.
2nd. I give my wife Elizabeth Mohn my farm consisting of the following described Premises (to wit) The West half (%) of the north East quarter (]4) of Section Twenty-Eight (28) in Township Eighty-three (83) north of Pange four (4) west of the 5th P. M. containing Eighty ' (80) acres more or less, Also the north East quarter .(]4) of the north East quarter (%) of Said Section Twenty-Eight (28). in Township and Pange above described containing forty acres more or less, Also the west half (%) of the South West quarter (%) of the South East quarter ’ (%) °f Section Twenty-one (21) in Township and Pange above described containing Twenty (20) acres more or less, ■During life or so long that she shall Pemain my widow.
3rd. I Give and Bequeath to my son Williams two Daughters my organ.
4th. I Give and Bequeath to my said wife Elizabeth Mohn all of my Personal Property consisting of household goods, monies and credits and all other Personal Property on the Premises Belong to me Excepting organ formerly Bequeathed.
5th. I direct that after the Death of my wife my son Philip Mohn shall have the Land above described, as forty-five dollars Per acre and the Pxuceeds of the same shall be divided among all my children, share and share alike.
6th. I order that my son Williams share shall Pemain in said farm until all of his children shall Become of age then three Hundred dollars shall be Paid to him and the Bal of the shall be divided among his children share and share alike.
7th. I order that my said son William Mohn shall Peceive the Interest on his share from the Death of my said wife until his children Becomes of age then the Principal be divided Between them share and share alike
8th. And lastly I appoint my said wife Executor of this my last will and Testament.
Signed this first day of October, 1891. Conrad Mohn.
The above Instrument Consisting of one Sheet was at the date thereof signed and declared by the said Conrad Mohn as and for his last will and Testament in Presence of us, who at his Bequest and in his Presence have subscribed our names as witnesses thereto.
H. C. Kurtz, Lisbon, Linn county.
John E. Kurtz, Lisbon, Linn county.
In order to avoid confusion we shall call the widow and interveners plaintiffs, as their claims are identical, and, save as hereinafter indicated, we shall treat the defendants as the representatives or successors of Philip Mohn, deceased.
Plaintiffs claim: Eirst, that under the will of Conrad Mohn, deceased, Elizabeth Mohn, widow, took title to the real estate left by testator in fee simple absolute; second, that if she did not take the real estate in fee under the will, she took a life estate in all the lands and an undivided one-third in fee simple; and third, that in any event she is entitled to her distributive share in all the real estate left by her deceased husband, because she has in no manner surrendered the same. Again plaintiffs contend that nothing passed under the fifth paragraph of the will save an option in Philip Gr. Mohn to purchase at the time of the death of the widow of Conrad, and that as Philip died without exercising his option, nothing passed to defendants as his successors under this fifth paragraph. Further claim is made that if the fee did not pass to Conrad’s widow under the will, it did not pass to Philip and that the real estate should pass as if it had never been devised. Defendants contend that nothing but a life estate passed to plaintiff, the widow; that this she sold for a valuable consideration to Philip during his lifetime;
1. Wills:construction: The first question is the nature of the devise to • Elizabeth Mohn. A careful reading of the will indicates that it gave the real estate described to the widow during life or so long as she shall remain testator’s widow. No other reasonable construction can be placed upon the second paragraph of the will. The following, among other oases, are conclusive upon this proposition: Spaan v. Anderson, 115 Iowa, 121; Podaril v. Clark, 118 Iowa, 268; Simpkins v. Bales, 123 Iowa, 64; Steiff v. Seibert, 128 Iowa, 748; Wenger v. Thompson, 128 Iowa, 754; Webb v. Webb, 130 Iowa, 460; Scott v. Scott, 132 Iowa, 37; Hoefliger v. Hoefliger, 132 Iowa, 576; Luckey v. McCray, 125 Iowa, 693.
Plaintiffs claim that the devise of the life estate to the widow was not inconsistent with her right to distributive share of one-third in the entire estate, and that she is entitled to both life estate and distributive share under the statutes before quoted. That there is some confusion in our cases construing these. statutes is conceded. The underlying principle is that if there be such inconsistency between the estate devised and distributive share that the claim to the devise and to distributive share will defeat some provision of the will, the widow can not have both, but must elect as to which she will take. Manifestly it was testator’s intent, under the second paragraph of the will, to give his widow a life estate, or rather a life estate or an estate during her widowhood, and by the fifth, sixth and seventh paragraphs he intended that upon the death of his wife the lands be sold, and at least $45 per acre of the proceeds thereof was to be divided among all his children, share and share alike. Whatever may be said regarding the legal effect of these last-named paragraphs of the will, it is clear that testator contemplated the disposition or sale of all his real estate in which his wife had
In Parker v. Parker, 129 Iowa, 600, we said: “The controlling principle in all of the cases, which have allowed the widow to take under the will and under the law at the same time, is that her claim is not inconsistent or incompatible with the terms of the will. With this thought in mind, it is at once apparent that an application of the rule to a particular case depends wholly upon the will under consideration and can not be controlled by cases construing wills with different provisions.” See as further sustaining these conclusions: Daugherty v. Daugherty, 69 Iowa, 677; Warner v. Hamill, 134 Iowa, 279; Cain v. Cain, 23 Iowa, 31. Some of our earlier cases doubtless announced a broader rule than this court is now willing to adopt, as will appear from some of the opinions just cited.
Warner v. Hamill, 134 Iowa, 279, relied upon by plaintiffs, is not in point. There was no direction that the real estate be sold as in the instant case,' and the court found no such condition of repugnancy between the widow’s taking distributive share and the other provisions of the will as to force her to an election. In that case we quoted
Doubtless the court in construing the statutes found in the Code of 1873 did not at all times make proper distinctions or definitely; preserve the lines of demarcation between the fact questions presented. It is true that ordinarily speaking' there is no necessary inconsistency between a life estate in all of testator’s land and a fee to one-third thereof in fee simple. That is to say, the widow might, in ordinary cases under the old statute, take both in so far as the claim of repugnancy between the two is concerned, but she could not take both, if the claim of distributive share in addition to the devise by will had the effect to defeat some other provision of the will. That testator intended a sale of the entire estate upon the death of his wife, and that neither she nor her successors should have any part of the proceeds of the sale or. any title to the lands remaining at her death, is too clear for argument, and under previous holdings the widow was put to an election to take the lands described during life, or so long as she remained unmarried, or her distributive share under the statutes herein referred to.
No attempt need be made to harmonize these cases, for the record shows that the widow was appointed executrix of the will of her husband, and that she filed a final report in the probate court wherein she stated, among other things: “That under the terms of the will she was entitled to all the real estate during her lifetime and that she was given all the personal property of every description owned by deceased, except an organ which was willed to the daughters of her son William. . . . That the debts due by deceased and which she was required to pay by the terms of the will, she would report that the only debts owing by the deceased were as follows: . . . All of which she has paid together with the costs of administration. . . . More than two years have expired since publication of notice of her appointment as executrix, and no other claims having been filed, she asks that her actions herein be approved and that she be finally discharged and her bondsman released.” This report was recorded in the probate record and constituted a sufficient election to take the life estate in lieu of dower. Pellizzarro v. Reppert, 83 Iowa, 497; Craig v. Conover, 80 Iowa, 355; In re Franke’s Estate, 97 Iowa, 704. The claim of estoppel argued by appellees’ counsel need not be further considered.
Y. The trial court in its decree found “that the defendants, by reason of the devise in the will of Conrad Mohn, deceased, to Philip Mohn, now deceased, have a vested interest in the lands (describing them) upon the condition and terms expressed in the fifth paragraph of said will. That the plaintiff, Elizabeth Mohn, transferred to Philip Mohn her use of the property in controversy during her life, in consideration of the yearly payment to her of the sum of $350. Therefore plaintiff’s and intervener’s petitions are dismissed and defendants, as widow and children ,of Philip Mohn, deceased, are entitled to the use and occupancy of said described land, so.long as they pay to Elizabeth Mohn, plaintiff herein, the yearly sum of $350, and said defendants, upon the death of said Elizabeth Mohn, are entitled to the property in question absolutely upon their paying to the estate of Conrad Mohn, deceased, the-sum of $45 per acre.”
Now -there is no doubt in our minds that testator intended to give his son Philip all the real estate in controversy after the death of -his wife, charged with the payment of a certain amount to each of testator’s children. The testimony shows that Philip, before his death, accepted this devise in so far as he could do so, and it appears that before he died the devise was a beneficial one, and that the land was worth considerably more than the charges made against it by the testator. The decree passed by the trial court provides that defendants shall have the land upon paying the sum charged into the estate of Conrad Mohn, deceased. The question as to whether they shall have any of it back is not now presented, and defendants are not complaining of the fact that they are required to pay this amount upon the death of the widow, as is indicated in the decree hitherto set out. Plaintiffs are not complaining of the amount ordered paid, but they say that nothing
In Henry v. Griffis, 89 Iowa, 543, we held that a devise somewhat similar to the one at bar creates a charge upon the land in the hands of the devisee. To the same effect: Woodward v. Walling, 31 Iowa, 533. See, also, Hanes v. Munger, 40 Ohio St. 493; Chase v. Warner,
While plaintiff’s counsel constantly speak of the fifth paragraph of the will as creating a mere option, and cite authorities which they claim support such view, we think their real contention is that the estate, if any, received by Philip was contingent remainder, or an esfate upon condition precedent, performance of which was necessary to the vesting of any estáte. None of the cases cited by them treat' such language as is here found as a mere option ■to purchase. Some of them might be cited in support of •the proposition that Philip did not take a vested estate, but rather a contingent or conditional one; but the better authorities seem to hold that the estate created by the language used is either a vested remainder subject to a charge upon or trust in the land, or a conditional or contingent remainder, the condition being construed to be a subsequent one not suspending the vesting of the estate. See many of the authorities heretofore cited and particularly Hanes v. Hunger, 40 Ohio St. 493, and Woodward v. Walling, 31 Iowa, 533, supra.
In so far as the proposition now before us is concerned it may be solved by the single thought that Philip elected to accept the devise before his death, obligating himself and his heirs to pay the charges against the same. Williams v. Nichol, 47 Ark. 254, (1 S. W. 243); Porter v. Jackson, 95 Ind. 210 ( 48 Am. Rep. 704); Gilbert v. Taylor, 148 N. Y. 298 (42 N. E. 713); Brown v. Knapp, 79 N. Y. 136; Case v. Hall, 52 Ohio St. 24 (38 N. E. 618, 25 L. R. A. 766); Wyckoff v. Wyckoff, 48 N. J. Eq. 113 (21 Atl. 287). Under our rule, however, it may be that neither he nor his successors would be bound for anything more than the value of the property. Pitlcin v. Peet, 87 Iowa, 268. But that point need not now be decided.
As plaintiffs did not plead the statute of frauds or object to the oral testimony offered to sustain the alleged contract, we might, under the doctrine of Crossen v. White, 19 Iowa, 111; Holt v. Brown, 63 Iowa, 322, and In re Snyder, 138 Iowa, 553, and other like cases, refuse to consider that question in its relation to the case. But, passing that point, we think the testimony shows such a change in the possession of the farm and such expenditures made by Philip Mohn during his lifetime on the faith of the contract as takes the oral agreement out of the statute. It will be remembered that the statute does not apply when the vendee has taken and held possession of the property under and by virtue of the contract, or when there is any circumstance which, by the law in force when the statute was passed, would have taken the case out of the statute. Code, section 4622.
Now, the testimony shows that testator and his wife lived upon the farm in question before testator’s death; the son Philip living with them and managing the land. After testator’s death the widow lived upon the farm; her son living with her and managing the farm, no- doubt as a tenant down to near the time of his (Philip’s) marriage. In view of that marriage and of the widow’s desire to leave the farm and move to town, the contract for the sale of her life estate was entered into. It was then arranged that the widow should leave the farm, that Philip should take and hold possession thereof, his wife becoming his housekeeper in place of his mother, and that he should pay the mother the amount agreed upon. Pursuant to this
The case fairly bristles with propositions of law and fact, and upon some of the former there is a conflict in the authorities. We have gone through it in the light of our former holdings, and where we have no rule already established have announced one which ■ we believe to be correct on principle and sustained by authority, with the result that we find nothing in the decree of the trial court of which plaintiffs may justly complain.
It is therefore in all respects affirmed.