189 Iowa 1174 | Iowa | 1920
Deceased left other property, which had been disposed of, under the provisions of the will, about six years before, — at least, it is not in controversy in this case. The property in controversy is a ten-room residence in Sioux City, which was the homestead of deceased and his family, prior to his death, and was occupied as such by the widow and perhaps some of the children, for a time. At the time of the death of the testator, some of the children were minors, and, at the time of the trial, Mary Watland, the mother, was guardian for one of them. The lease covered the entire property, and the rental was $45 per month, but the widow desired to retain three rooms, because she was there alone, and needed someone in the house: and it Avas orally arranged that she should pay defendant $20 per month in the summer and $25 in the winter therefor, or the rent reduced that much. The AvidoAv and one Eliiott were made trustees under the Avill. Elliott died before the lease in question Avas made. The lease Avas not executed or signed by the Avidow as trustee or guardian, but individu
“I give devise and bequeath all my property of every*1177 kind and character, real, personal and mixed, to my wife, Mary J. Watland, and my son-in-law, John Elliott, to be held by them in trust for the term of eight years from the date of my decease, but with full and complete power of disposal and substitution, or reinvestment according to their judgment for the following purposes:
“I have eight children, all equally dear to me, and of about the ages following: Jesse M. Watland, 30 years old; Mrs. Bessie Elliott, 27 years old; Elsie M. Watland, 24 years; William EL, 15 years old; Maurice O., 14 years old; Walter K., 10 years old; Frances L., 8 years old, and Ralph 0., 5 years old. I desire that my property shall be held by said trustees for said term of eight years, and the income thereof applied to the support of my said wife and minor children, and the education of my said minor children, to the end that my said minor children shall, as' nearly as may be, have the same advantages that my older children had during their minority; and at the end of said term of eight years I will and desire that my property shall be distributed to my wife and all my children in the same manner and proportions as by law provided as if no will had ever been made, that is, to my wife, one third, and the remaining two thirds to my said children in equal parts: provided if any of my said children shall have deceased at that time Avithout issue then the property shall go in equal parts to the surviving children, but if any of my said children shall have died leaAdng issue then such issue shall take the part that AArould otherwise have gone to the parent if living; and when such distribution shall have been made the property received by each shall be held to such distributee and to his or her heirs forever in fee.
“3. If at any time the income from my said property shall prove insufficient for the comfortable support of my said Avife and minor children, and the proper education of my said minor children according to the judgment of my said trustees then said trustees are thereby directed and empoAvered to dispose of such portion of said property as may be necessary from time to time for such support and*1178 education; and if at any time my said trustees should deem it for the best interest of my estate that any portion of my property should be disposed of and the proceeds reinvested, in other property, then they shall have the right and power to dispose of such property, giving good and perfect title thereto by their joint deed, as such trustees without the order of court therefor, and the title of the property so conveyed shall not be affected in the hands of the grantee by any acts of said trustees in handling the proceeds thereof.”
The will also makes the parties named as trastees, the executors.
The lease, executed June 1, 1918, provides, among other things, in addition to provisions before referred to:
“It is further agreed by the party of the first part that party of the second part, or his legal representatives can underlet said premises or any part thereof, or assign this lease without the written assent of the pai'ty of the first part had hereto.
“And it is further covenanted and agreed, between the parties aforesaid that lessee has the privilege of further renewals of this lease for similar periods of six months each at the same terms at his option,, not to exceed six in all, by giving notice to lessor thereof one month before the expiration of the preceding period.”
The notice given defendant to require plaintiff to vacate the three rooms by August 1st, was given June 23, 1919. This suit was brought in August, 1919, so that there would be about 2y2 years to run, if defendant renewed six times. The testimony of defendant as to the conversations is somewhat, different from that of plaintiffs, but not materially so. He says that Mrs. Watland became hysterical, when he served notice on her to vacate, and that she said she was a widow and that, her boys being away, he had taken advantage of hei’, and that she asked to be released, which he refused to do.
The principal contention of appellant, as we xxnderstand it, is that Mrs. Watland had authority to make a binding
1. Briefly, as to the occupancy by the widoAv as her homestead, appellant cites Code Section 2985, and Floyd v. Mosier, 1 Iowa 512.
It is said in the Floyd case that, under the statutes then in force, the surviving husband or Avife has a right to continue the possession And occupy the homestead until it is other Avise disposed of, according to law; and that, if there is no survivor, then it descends,, in the absence of a will, to the issue, etc. That Avas an action by the widow to recover rent for a part of the 40 acres which she had rented to the defendant. To the same effect, see Fehd v. City of Oskaloosa, 139 Iowa 621, 624.
In the instant case, doubtless, as between plaintiff and defendant, she could maintain an action for rent for the time defendant actually occupied the premises, under the lease signed by her, for the reason that the tenant may-not deny the landlord’s title. But it does not follow that the heirs are bound by a contract by her, contrary to the will, without their authority, and without- their knOAvledge or consent. In the Floyd case, there avus no Avill. The real "question in the Floyd case Avas as to the competency of children to testify. In the instant case,, there is no claim that the widow had elected to take her homestead rights, or distributive share. She was claiming only under the will. Incidentally, it appears that the property had been the homestead, prior to the death of the testator, and that she occupied it during the trust period of eight years, and that the children permitted her to use the property, or a part of it, for a time thereafter, but that there was no agreement by them that she should occupy it for any
2. To sustain the contention that, under this will, Maiy Watland took the title in fee, appellant cites In re Estate of Petranek, 79 Iowa 410; Olsen v. Youngerman, 136 Iowa 404; Potter v. Couch, 141 U. S. 296 (35 L. Ed. 721). The Petranek case was an action to remove two persons alleged to have been trustees, and the. holding was that persons to whom money is bequeathed, but who are charged with the duty to use it for the benefit of others, are, considered in their relation to the testator and the will, legatees, but, considered in their relation to the beneficiaries of the property, they are trustees, and as such, upon their refusal to act, they may be removed by the court, etc. That has little, if any, bearing here, since this will names the persons as trustees. In the Olsen case, the holding was that a court of equity, under some circumstances, has power to dissolve a trust before the expiration of a term for which created; but in that case, where the bequest was to trustees, with absolute control and power of disposition, the income from which was to be paid, part to the donee and the balance to his children, and, upon the death of the donee, any portion then remaining was to go to his children, or the survivor of them, the trust was an active and existing trust, which would not be terminated prior to the death of the donee. In the Potter case, a trust was created for 20 years after the death of the testator. The specific provisions of the will are too long to set out herein, but tlie holding was that the legal title vested in the executors, and did not terminate at the end of 20 years from the death of testator, but continued in them until they had, by sale or otherwise, settled the estate and made the division and conveyed the shares. We do not understand appellees to contend otherwise, nor do they contend that the legal title is not in the trustee. Indeed, in the present case, the heirs ask that the mother, as trustee, be required to divide the property and execute deeds, and she, as trustee, asks
3. We are of opinion, too, that, under the record, the heirs are not bound by the act of their mother as an individual. We have seen that, though she was itsing a part of the property as her home, she was not claiming or acting under any homestead right. Appellees contend that the Avidow and children were tenants in common, and that a lease by one tenant in common of the entire estate is void as to cotenants (citing authorities). Appellant’s answer to this is that, assuming that they are cotenants, the mother,, in leasing the property, acted Avith the knoAvledge, consent, and acquiescence of the heirs, and that, therefore, they are bound. Enough has been said to shoAv that the heirs did not have such knowledge, and that they did not consent to or acquiesce in the making of the lease. The
Appellant complains of that part of the decree authorizing the trustee to execute deeds, and divide the property. This does not concern him, if he did not have a lease binding upon the heirs. Under the will, it ivas the duty of the trustee to do so, and no reason is shown why the distribution or division should be longer delayed. We approve the decree of the district court, and it is — Affirmed.