136 Iowa 366 | Iowa | 1907
Tbis action was commenced on December 16, 1905. Tbe plaintiff and the defendant Charlena Anderson are brother and sister, children of ionisa Yan Yleck. The other defendants are the two sons of Charlena, both of whom have attained to the age of majority. The petition alleges the death of Louisa Yan Yleck in the year 1897, and that she died testate and seised of certain real estate described and some personal property. The instrument of will is set forth, and the probate thereof in the district court of Plymouth county alleged. The will bears date January, 1878, and according thereto one-half of the estate, both real and personal, is bequeathed to plaintiff, Balfour Yan Vleck. Following a minor bequest to Charlena, there is, then, this provision:
(4) I devise and bequeath to my executors (Balfour Yan Yleck and B. M. Gurnee) all the rest, residue and remainder of my property, to be held in trust and used for the purpose as follows, to-wit: The same to be productively invested in good real estate security, and interest to be paid annually to my said daughter Charlena during her lifetime, and in case it shall appear to the satisfaction of my said executors and trustees that a portion or all of the principal shall be needed for the support of my said daughter, or for the support and education of her children, then in that case they are hereby authorized to use the part or all the principal for the purpose aforesaid. At the death of my said daughter, then the said bequest to go to her children; but if my said daughter shall die without leaving issue, then in that case the said remaining property to go to my son Balfour H. Van Vleck.
It is then alleged that the real estate of which said Louisa died seised still remains undisposed of, and that.defendants have commenced an action in said court praying
Trial of the present action was had on May 26, 1906, and the evidence offered and introduced consisted' solely of the pleadings in the alleged former action. The petition in that action was filed November 14, 1905, and shows the parties to be Charlena Anderson and her two sons, plaintiffs, and Balfour Van Vleck and B. M. Gurnee, defendants. The death of Louisa Van Vleclc testate is alleged, and that she died seised of real estate (being that described in the petition in the present action) and of considerable personal property. The will is set forth at length, and the probate thereof alleged. It is then alleged that at the date of the execution of said will Louisa Van Vleck resided in
Respecting the personal property it is alleged that it was the duty of defendant to invest the same, paying Char-lena the interest annually during her life, and, after her death, the principal sum to her children. The charge is then made that defendants, in disregard of their duties, entered upon a scheme to defraud 'and deprive plaintiffs of their interest in the devised property; that• defendant Balfour Van Vleck persuaded plaintiff Charlena that it was competent for them, acting together, to disregard the provisions of the fourth paragraph of the will, and to fix the extent of the interests of all the plaintiffs in the property, and that by fraud he procured her to convey to him, in consideration of a nominal sum, represented by a note, the undivided one-half of the real and personal property; that said Balfour has taken possession of all said real estate, and claims to be the sole owner thereof in fee; that he has converted all the personal property to his own use. The conclusion is then alleged that there was no power in said Balfour and said Charlena to make said agreement and conveyance; that, if the agreement is permitted to stand, the same will operate to defeat the intention of the decedent as ex
The answers filed to such former petition were separate. Beading the same, Van Vleck denies that he was ever confirmed as an executor of his mother’s estate, and says that in his place one Dalton was appointed, who, with Gurnee, qualified. He says - that neither himself nor Gurnee were ever qualified as trustees under the fourth provision of the will. He admits the allegations of the petition as to the circumstances under which the real estate was purchased by his mother, but denies the intention ascribed to her to make her purchase a permanent investment. The condition of the property and estate at the time of the conveyance made to him by his sister — which conveyance is admitted —— is pleaded, and he admits that he is in possession of all such property. He denies all fraud, and says that at the time’of such conveyance to him it was believed by both parties thereto that they had a right to agree upon a disposition of the property; that he has since been advised, however, that his sister did not have power to convey the fee of the real estate.
Besponding to the demand for an accounting, and for a decree quieting title, he pleads that plaintiffs have no rights
It follows that the judgment must be, and it is, affirmed.