193 Iowa 474 | Iowa | 1920
The judgment owned by plaintiff was obtained many years prior to the death of Ella O. Stover. Testatrix, at the time of her death, was seized of considerable real property. Some time thereafter, partition proceedings were begun by her husband against the Schoonover Trust Company, which was also the executor of her estate, and on a stipulation by the parties, the real property was sold, and the proceeds turned over to the trustee. On April 10, 1915, the day following that on which testatrix died, an execution was issued and levied upon the interest of Lewis D. Osborne in her estate. The will was admitted to probate in May, 1915, the exact date not appearing in the abstract. On May 19, 1915, plaintiff commenced this action in equity, setting up in her petition the interest of Lewis D. Osborne in the estate of his sister, and asking that her judgment be established as a lien against such interest, and that same be appliéd in payment and satisfaction thereof. Original notice of the commencement of this action was served upon the Schoonover Trust Company on May 20th, and upon Lewis D. Osborne, May 24, 1915. On September 14, 1915, the defendant Lewis D. Osborne appeared by counsel, and was given 15 days to plead. Later, this time was extended to October 6, 1915. On October 29, 1915, he filed answer, disclaiming any interest in
On November 9, 1915, W. D. Sheean was appointed guardian of Genevieve Osborne, who was a minor, and on January 3, 1916, filed a petition in intervention herein on behalf of his ward, setting up the renunciation by Lewis D. Osborne of the bequest, and alleging that same passed under the will to her, and asking that her right be decreed thereto. To this petition in intervention, plaintiff filed answer in three divisions, alleging acceptance of the bequest by Lewis D. Osborne; that his pretended written renunciation was filed after the execution was levied and became a lien upon his interest in the estate; and that same was void and without effect, as against plaintiff. Plaintiff also set up a plea of estoppel.
The substance of the plea of estoppel is as follows: That the will of Ella O. Stover was admitted to probate in May, 1915; that, on May 24th, plaintiff’s lien upon the interest of Lewis D. Osborne therein attached thereto; that, at the time of the levy of said execution and the commencement of this action, plaintiff indulged and relied upon the presumption that, as the provisions of the will were favorable to him, Lewis D. Osborne had accepted, or would accept, the same; that the said Osborne made declarations recognizing and accepting the provisions of said will, and by his acts and conduct evinced his acceptance thereof; that, well knowing that plaintiff was proceeding in reliance upon the presumed acceptance of the provisions of the will, Lewis D. Osborne permitted the proceedings to continue for a period of six months, knowing that plaintiff was incurring expense preparing the ease for trial; and that during said time Osborne employed counsel, and at the September term of court, appeared and obtained an extension of time in which to file answer; that he made no attempt to renounce the bequest until in October, 1915; and that the said renunciation was for the sole purpose of defrauding and defeating plaintiff in the enforcement of his lien, and was collusive for that purpose.
Plaintiff further alleged that she would not have incurred
The above matters are not pleaded as an estoppel against appellant, nor could they so operate. If, however, Lewis D. Osborne estopped himself from renouncing the bequest, as against the lien of appellee’s judgment, then her claim is paramount and superior to any claim by appellant, as guardian of Genevieve Osborne thereto.
It is universally presumed, from the beneficial character thereof, that a legatee will accept a bequest to him, if no obligation or burden is imposed upon him by reason of such acceptance. The rule that a legatee may reject or renounce a bequest made for his benefit, even without casting a burden upon him, is quite as universally recognized as that of presumed acceptance. The more difficult question here is: Did the renunciation of Lewiá D. Osborne, evidenced by the written instrument filed in probate after the levy of the execution and the commencement of this action to subject his interest in the trust estate to the payment of appellee’s judgment, render the levy ineffectual and defeat her claim? Much reliance is placed by counsel for appellee upon our holding in Shedenhelm v. Cafferty, 174 Iowa 195. But a careful reading of the opinion in that ease reveals a clear distinction between the facts there involved and those with which we are concerned in the case at bar. There was no renunciation in the Shedenhelm case, but an attempt, by waiver, to pass the interest of a devisee to the mother. In the case at bar, Lewis D. Osborne filed a definite and positive renunciation of the bequest, both in the probate court and in this action. This renunciation is binding and conclusive upon him: that is, by this act he completely divested himself of any and all interest in the income from the trust estate or of the benefits of the bequest.
Counsel have not called our attention to any case squarely in point. ¥e have held, however, that a renunciation by a devisee defeats the right to the collection of a succession tax. In
We have been able to find but few decisions in other jurisdictions touching the main question, but with one or two possible exceptions, such as have been brought to our attention, they hold that the right of renunciation is superior to the right of creditors. Bradford v. Calhoun, 120 Tenn. 53 (109 S. W. 502) ; Bradford v. Leake, 124 Tenn. 312 (137 S. W. 96) ; Strom v. Wood, 100 Kan. 556 (164 Pac. 1100); Albany Hospital v. Albany Guardian Soc., 214 N. Y. 435 (108 N. E. 812); Tarr v: Robinson, 158 Pa. St. 60. The Supreme Court of Tennessee, in Bradford v. Calhoun, supra, said:
‘ ‘ The true rule, founded upon principle, is that it is optionary with the devisee to accept the devise, however beneficial it may be to him; and when he elects to renounce, before any act on his part indicating an acceptance, his renunciation shall relate back, and will be held to have, been made at the time of the gift, and will displace any levy of creditors that may in the meantime have been made. Surely, that principle should apply to this case, since Sneed renounced the devise on the day that the will of his wife was admitted to probate. It is insisted by learned counsel for defendant that this renunciation was made for the purpose of defeating the collection of the defendant’s judgment, or, if not, it was in effect a voluntary conveyance, and void as against existing creditors. As it was optionary with Sneed to accept or renounce, it is immaterial what his motives were, so long as there is no collusion with the remainder-men or residuary devisees, by which he fraudulently receives a benefit for his renunciation; and there is no proof of this. The renunciation is not a voluntary conveyance, void as against existing creditors, because, when he has properly renounced, the renunciation relates back to the date of the gift; and, as he has never accepted the gift, he has had nothing that could be made the subject of a voluntary conveyance.”
All of the courts hold that the renunciation, when filed, relates back to the time when, under the law, the will became effective. Albany Hospital v. Albany Guardian Soc., supra; Bradford v. Leake, supra; Strom v. Wood, supra.
The presumption of acceptance does not operate to vest
But two cases have been brought to-our notice which hold contrary to those cited supra. One of these is In re Buckius’ Estate, 17 Pa. Co. Ct. 270, in which it was held that the lien of an attachment upon the interest of a legatee is superior, to his right to waive or renounce the gift. In view, however, of the more recent holding in Tarr v. Robinson, supra, we assume that the doctrine of the Buckius case does not now prevail in Pennsylvania. The writer of the opinion in Stebbins v. Lathrop, 4 Pick. (Mass.) 33, suggests the query whether renunciation becomes effective as against creditors, but the proposition was not involved in that ease, and the court expressed no opinion thereon.
It is our conclusion upon this point that the right of Lewis D. Osborne to renounce the gift was in no wise interfered with by the levy of the execution or the commencement of this action. The record is devoid of any proof tending to show collusion or fraud.
III. Nor is the rule that the defense of estoppel must be • held good, because the answer was not assailed by motion or demurrer in the court below, applicable to the facts of this case, for the reason, if none other, that the same was not established by the evidence. The answer alleged that Osborne, by his declarations and conduct, accepted the provisions of the will. The evidence wholly fails to show any declara
The evidence wholly fails to support the plea of estoppel, and appellee cannot, therefore, take advantage of the failure of appellant to assail the same by motion or demurrer.
For the reasons already stated, the judgment of the court below 'is — Reversed.