167 Iowa 649 | Iowa | 1914
The respective parties claim title to the real estate in controversy under and in virtue of the will of Jose Foxworthy, deceased, the material parts of which read as follows:
I hereby give to the heirs of my daughter, Eaehel Tubbs, now deceased, the sum of three hundred dollars ($300.00) to be divided between said heirs, share and share alike.
. I also direct that if any of my said heirs shall not survive my said wife, Mary M. Foxworthy, that portion of said estate which would have gone to said heir had such an one been living, shall be divided share and share alike between the legal heirs of my said heir at that time deceased.
Plaintiff Mary E. Parker is a daughter of the deceased. The other defendants, aside from George Foxworthy, Ellen Henderson, William Foxworthy, Malisa Schappel, Meda Grant, Florence' Seitz, and Anarpy Sloneker, who are sons and daughters of the deceased, are either the wives of these heirs or grandchildren of the deceased, and their husbands or wives being the children of Eufus Foxworthy, a deceased son of the deceased, or of other deceased sons or daughters. Plaintiffs claim that the living sons and daughters of the deceased, nine in number, are each entitled to an one-tenth of the property, and that the grandchildren of the deceased simply take the share that their parents would have taken had they survived their parents. In other woTds, plaintiffs say that these grandchildren are each entitled to an one-nineteenth interest in the property; while they insist that they are each entitled to an one-eighteenth interest therein.
The solution of the problem is dependent upon the rule of law to be applied; that is, whether the descent shall be per stirpes or per capita. The trial court found that it should be per capita, and the appeal is from this ruling. Under our statute in the absence of a will real estate descends in equal shares to the children of one deceased (assuming there is no wife to take her share), and, if any of them be dead, his or her heirs inherit his or her share as though such child had. outlived its parents. Code, section 3378. But one may-direct
Appellants rely upon what they claim was testator ?s intent as evidenced by the will itself, which they insist was to distinguish between his heirs and the heirs of his children. It is true that in one clause he speaks of the heirs of his daughter, in another of his heirs, and in another of the legal heirs of his heir; but in the clause under consideration he makes no distinction, and refers specifically to his heirs, share and share alike. His heirs comprehend not only his living children, but also the heirs of any who were deceased at the time of his death, and he also specifically mentioned those who might survive him and yet die' before the demise of his wife; hut as tó the latter he does not differentiate between children
The decree is correct, and it is — Affirmed.