Opel v. ShoupOpel v. Shoup
- Reporters:
- ,
- Before:
- Given
The last will and testament of John C. Hormel, deceased, provides as follows: “After my death, I desire that my estate, of whatever name and nature, be placed in the hands of a trustee, hereinafter named, to be by him invested so as to be productive of good interest, and in such manner as he may deem safe.
(2) I desire that the entire proceeds of said investment of my estate shаll be paid at the end of each year to my wife, Elizabeth Hormel, so long as she shall remain my widow. If she marries again, then I desire that one-half of my estate be paid to her for her own free use and behoof, and the other half to be paid to my sister Anna Shoup, now living at Springfield, Hlinois. In case my sister dies before the division of my estate is made as above provided, then I desire that the one-half of my estate be divided equally between my heirs at law by blood kinship.”
A. A. Ball was appointed in the will as trustee and sole executor, and qualified as such.
The first contention is whether the defendant (appellant) Anna Shoup, is entitled to one-half of the property in question under said will.
John C. Hormel died April 13,1892, without issue, leaving his wife, Elizabeth Hormel, and his sister Anna Shoup, surviving him; his parents, brothers, and sister, other than Anna, having departed this life prior to his death. Elizabeth Hormel died, intestate, November 29, 1892, not having married again. The ruies for construing wills are so well understood, and of such frequent, application that we need not refer to the many authorities cited; it is sufficient that we refer to Kiene v. Gmehle, 85 Iowa, 313 (52 N. W. Rep. 232).
In that case this court quoted, with approval, from cases cited, as follows: “The cardinal principle to be kept in view is that the intent of the testator, *416if possible, is to be ascertained in tbe construction of wills. Courts always look upon the intent of the testator as the polar star to direct them in construction of wills.
The object of all rules of interpretation is to discover the intent, and this should be gathered from the whole instrument.
It may, however, be trusted as a safe rule to follow in all cases of construction of contracts, conveyances, or wills, that the intent of the parties, manifested by the reading of the whole instrument together, in the light of attending circumstances, must control the meaning.” It is said in that case: “The intent of the testator, as shown by the will construed according to established rules, must control. Courts may not give effect to any other result than that intended. To do so would be to make the will for the testator. Neither may they defeat the intention when it is lawful.”
Guided by these rules, we turn to the will to ascertain the intent of the testator in respect of the devise to Anna Shoup.
It is therein plainly written, in unmistakable terms, that the proceeds of the estate are to be paid to Elizabeth Hormel “so long as she shall remain my widоw,” and, in terms quite as definite, that, if she marries again, one-half shall be paid to her for her own free use, “and the other half to be paid to my sister, Anna Shoup.”
The sole contingency upon which Anna Shoup was to be paid one-half, was the re-marriage of Elizabeth Hormel. Elizabeth Hormel did not marry again, and therefore the contingency upon which alone Anna Shoup was to hаve one-half of the estate never occurred. Under the facts, viewed from our standpoint, we might say that it would be reasonable and equitable if the testator had provided that one-half *417should go to Anna Shoup on the death of the widow without re-marriage, as well as upon her marrying again; but the will does not so provide. The testator had a right to rest it upon the condition that hе did, and, having done so, it is not for us to inquire as to his reasons. We think the learned district judge held properly that Anna Shoup is not entitled to take one-half of the estate under the will, and that she is only entitled to share therein as an heir of John 0. Hormel, deceased.
The plaintiff, Fred Opel, contends that he is entitled to inherit the undivided one-half оf said real estate from his sister, Elizabeth Hormel, either solely or with his said brother and sister.
It is contended on behalf of the heirs of John C. Hormel, that neither the plaintiff nor the other children .of Elizabeth Opel are entitled to so inherit, and that, therefore, no heirs of Elizabeth Hormel being found legally entitled to inherit said property, it goes *418to the heirs of her deceased husband, John 0. Hormel, under section 2458 of the Code of Iowa.
Leaving out of consideration the fact of alienage, it would not be questioned but that, upon her death, the estate of Mrs. Hormel vested in her mother, and, upon her death, in her children, Fred Opel, John Opel, Sr., and Barbara Degleman. Chapter 85, Acts Twenty-second General Assembly, approved April 9, 1888, provides as follows:
“Section 1. Non-residеnt aliens * * * are hereby prohibited from acquiring title to, or taking or holding any lands or real estate in this state by descent, devise, purchase, or otherwise, only as hereinafter provided.”
An exception is thereinafter provided in favor of “ the widow and heirs of aliens who have heretofore acquired lands in this state under the laws thereof;” but this exception does not apply to this case, as Elizabeth Hormel was not an alien. Section 2 of said chapter provides as follows:
’“ Sec. 2. Any non-resident alien may acquire and hold real property to the extent of three hundred and twenty (820) acres, or city property to the amount of ten thousand dollars in value, providing that within five years from the date of purchase of said property, the samе is placed in the actual possession of a relative of such purchaser, the occupant being related to such owner within the third degree of kindred, or the husband or wife of such relative, and further provided, that such occupant become a naturalized citizen within ten years from the purchase of said property aforesaid.”
In Bennett v. Hibbert, 88 Iowa, 155 (55 N. W. Rep. 93), it is held that “purchase” and “purchaser,” as found in this section, include every method of acquiring title to real estate, except by descent by operation of law. See Burrow v. Burrow, 98 Iowa, 400 (67 N. W. *419Rep. 287). Section 7 of said chapter provides that the act shall not apply to aliens who are residents of the state of Iowa. It is certainly clear that Mrs. Opel was disqualified from acquiring title to, or taking or holding this real estatе by descent, under the prohibitions of the first section, and that she is not within either of the exceptions made to that prohibition.
In Furenes v. Michelson, 86 Iowa, 508 (53 N. W. Rep. 416), this court held that a naturalized citizen, resident of this state, cannot inherit through a father who is a non-resident alien, the lands of a great-uncle who was a naturalized citizen, “on the ground that a line of inheritance cannot be traced through non-resident aliеns.”
If nothing further appeared, the conclusion would follow from what we have said, that the estate did not pass to Elizabeth Opel, and consequently, did not pass to her children.
III. On January 21, 1845, there was concluded and adopted between the United States of America and the King of Bavaria, Germany, a treaty, articles 1, 2, and 3 of which are as follows:
“Article 1. Every kind of droit d’aubaine, droit de retraite, and droit de detraction or tax on emigration, is hereby аnd shall remain, abolished between the two contracting parties, their states, citizens, and subjects, respectively.
*420“Art. 3. The citizens or subjects of each of the contracting parties shall have power to dispose of their (real and) personal property within the states of the other, by testament, donation, or otherwise; and their heirs, legatees, and donees, being citizens or subjects of the other contracting party, shall succeed to their said (real and) personal property, and may take possession thereof, either by themselves or by others acting for them; and dispose of the same at their pleаsure, paying such duties only as the inhabitants of the country where the said property lies shall be liable to pay in like cases.”
The other articles provide for the care of the property in the absence of the heirs, the mode of deciding disputes, that the treaty shall not derogate from the force of laws of Bavaria to prevent the emigration of the king’s subjects, and that the treaty is made subject to the approval of the two governments,
This treaty abolishes, as between these governments and the subjects thereof, “every kind of droit d’aubaine, droit de retraite, and droit de detraction or tax on emigration.”
Black’s Law Dictionary defines “droit” as equivalent to the English word “right”; and “droit de’aubaine” as, “in French law, a rule by which all the property of a deceased foreigner, whether movable, or immovable, was confiscated to the use of the state, to the exclusion of his heirs, whether сlaiming ab intestato or under a will of the deceased.” It is this provision of the treaty that we are called upon to consider. Appellants insist that the provisions of the treaty are not applicable to this case; that confiscation was never applied by any government to property of its own deceased citizens; and that the treaty only contemplates the prоtection of the citizens of either government, who may die having property in the other. *421The fault of this argument is in assuming that the protection is for the dead, and that the property remains in the deceased. It is conceded that this property vested in some living person immediately upon the death of Mrs. Hormel. If, under the common law, that person was disqualified by alienage from inheriting it, then this treaty applies and removes that disqualification.
In the absence of this treaty, Mrs. Opel was disqualified, by alienage, from inheriting this property; but by it the disqualification was removed, and therefore the property descended to her. Our inquiry, then, is as to property in Iowa belonging to a resident and subject of Bavaria.
Appellants cite Frederickson v. Louisiana, 23 Howard, 445. “Fink was a naturalized citizen of the United States at the time of his dеath, and residing in the city of New Orleans; also, that the legatees resided in the kingdom of Wurtemberg, and are subjects of the King of Wurtemberg.” We had a treaty with that kingdom similar to that under consideration. Louisiana had a statute providing that “each and every person, not being domiciled in this state, and not being a citizen of any other state or territory in the Union, who shall be entitled, whether as heirs, lеgatee, or donee, to the whole or any part of the succession of a person deceased, whether such person shall have died in this state, or elsewhere, shall pay a tax of ten per cent, on all sums, or on the value of all property which he may have actually received from said succession, or so much thereof as is situated in this state, after deducting all debts due by the succession.” Rev. St. 1876, section 3683. The claim of the state to this tax was resisted, on the ground that it was contrary to the third article of the treaty, and that article alone, and not the second, as in this case, was under consideration. The third article of that treaty relates solely to *422personal property, and is different in its language from the second, which is identical with the second in this. The court held that the act does not make any discrimination between citizens of the state and aliens in the same circumstances, and sustained the tax as valid. Appellants quote from the opinion as follows: “But we concur with the supreme court of Louisiana in the opinion that the treaty does not regulate testamentary disposition of citizens оr subjects of the contracting powers with reference to property within the country of their origin or citizenship. The cause of the treaty was that the citizens and subjects of each of the contracting powers were or might be subject to onerous taxes upon property possessed by them within the states of the other by reason of their alienage, and it is, perhаps, to enable such citizens to dispose of their property, paying such duty only as the inhabitants of the country where the property lies pay under like conditions. The case of a citizen or subject of the respective countries residing at home, and disposing of property there in favor of a citizen or subject of the other, was not in contemplation of thе’ contracting powers, and is not embraced in this article of the treaty*” This view of that treaty is applicable to the one before us, but we fail to see wherein it supports the claim that the facts of this case do not bring it within the provisions of this treaty.
It follows from the conclusions we have reached that an undivided one-half of the property in question vested in Mrs. Opel upon the death of her daughter, and upon her death it passed to her children, subject to -the conditions imposed by said treaty, and that the other undivided one-half passed to the heirs of John 0. Hormel, deceased. The decree of the district court being in harmony with these conclusions, it is AFFIRMED. ’