Baker v. Hibbs

• Decision Date: 22 October 1914
• Docket Number: No. 29434.,29434.
• Citation: 149 N.W. 85,167 Iowa 174
• Parties: BAKER ET AL. v. HIBBS ET AL.
• Court: Iowa Supreme Court

167 Iowa 174

149 N.W. 85

BAKER ET AL.

v.HIBBS ET AL.

No. 29434.

Supreme Court of Iowa.

Oct. 22, 1914.

Appeal from District Court, Wayne County; H. K. Evans, Judge.

Suit for the partition of certain real estate. Sarah E. Hibbs, a defendant and appellant, claimed an one-fourteenth interest in the lands against some of the other parties plaintiff and defendant. The trial court found that Sarah E. Hibbs had no interest or share in the lands, and she appeals. Affirmed.Miles & Steele, of Corydon, for appellant.

Carter & Bracewell, of Corydon, for appellees.

DEEMER, J.

[1] The issue is between Sarah E. Hibbs, a defendant on the one side, and Lucinda J. Baker (now Chapen), Martha E. Marsh, and Mary K. Gunter, plaintiffs, and Hannah Hibbs, Nora D. Lee, James Hibbs, Stephen A. Hibbs, Lloyd Hibbs, and Carl Hibbs, defendants, on the other. Sarah E. Hibbs claimed an undivided one-fourteenth interest in the lands under the will of S. A. Hibbs, deceased, which, so far as material, reads, as follows:

“I give and bequeath to Eliza Hibbs, my beloved wife, all my personal property, she to sell enough to pay all my debts out of said property, including my last sickness and burial expenses, her to have the personalty all in her own right, to do as she pleases with after all the debts are paid, to be in lieu of dower, also to have the use and full control of all the real estate during her natural life to control and use the same as I might if living. At the death of my wife, Eliza Hibbs, my farm is to be sold by my executor, in two parcels, the 120 acres deeded to me by John Chilcoat in one parcel, and the other 200 acres deeded to me by Jacob Chilcoat in another parcel, it being divided this way on account of the improvements on the same; the proceeds of the said land is to be divided as follows: Equally between the following named heirs to share and share alike; Lucinda J. Baker, Martha E. Marsh, P. J. Hibbs, Mary K. Gunter, Hannah Hibbs, children by former wife, also the living heirs of the body of the late P. W. Hibbs, also a son by former marriage; also J. L. Hibbs, Sarah B. Anderson, Emma V. Keller, Clarissa M. Darrah, Charles O. Hibbs, Samuel A. Hibbs, children by present wife; also Izateus Glover, stepson, being son of my present wife by former husband. Golda Evans, the daughter of Cora Evans, deceased, all of the above named parties to share and share alike upon the following conditions; having already advanced the said Lucinda Jane Baker, the sum of three hundred dollars by deeding to her forty acres of land, I desire that amount deducted from her share, one hundred dollars of the remainder of her share is to be paid to her, and the remaining is to be placed at interest and given to her as needed by guardian appointed for her by the court. Hannah Hibbs is to have one hundred dollars at the time the division is made, and the balance to be put on interest to be used for her support. Charles O. Hibbs to be appointed as her guardian. Golda Evans, daughter of Cora Evans, deceased, share is to be placed at interest to be used only for her support and if she should die before she comes of age without leaving heirs of her body, her share is to go to her mother's full brothers and sisters, them to share and share alike; and further if there should be anything left of the estate of Lucinda Jane Baker's share it shall go to her full brothers and sisters, if any of the heirs named should die without living issue then and in that case their share or shares shall go to their brothers and sisters of the full blood. If any of the above named heirs should make any disturbance or try to break this will, then and in that case the heir so making the fuss or disturbance shall be cut off and have no part in the share of my estate except the sum of ten dollars, which shall be his full share.”

Testator died seised of the real estate in controversy March 11, 1902. His will was executed September 26, 1901, and it was duly admitted to probate on May 14, 1902. He left surviving his widow, Eliza Hibbs, and the following children: Lucinda Jane Baker-Chapen, Martha E. Marsh, Mary K. Gunter, P. J. Hibbs, and Hannah Hibbs, who were children by a former wife, and J. L. Hibbs, Emma V. Keller, Clarissa M. Darrah, Sarah B. Anderson, Charles O. Hibbs, and Samuel A. Hibbs, children by the said Eliza Hibbs. He also left surviving him the following grandchildren: Okley Hibbs and Golda Evans, and one stepson, Izateus Glover, a son of his wife, Eliza Hibbs, by a former husband. At the execution of the will, the testator's son by his former wife, P. W. Hibbs, was dead, and there then survived said P. W. Hibbs, his widow, Sarah E. Hibbs, and two children, to wit, Okley Hibbs and Merna Hibbs, who were his only heirs at law, all of whom were living at the execution of the will. The widow, Sarah E. Hibbs, subsequently married J. L. Hibbs, previously mentioned herein, and is now the wife of said J. L. Hibbs, and the mother of the two above-mentioned children of said P. W. Hibbs, deceased. Merna Hibbs died intestate prior to the death of said testator, to wit, on December 4, 1901, aged 15 years, never having married, and never having had issue. Okley Hibbs died intestate May 25, 1909, aged 26 years, 8 months, and 14 days, never having married and never having had issue, leaving surviving as his sole heir at law, the said Sarah E. Hibbs, his mother, defendant herein. P. J. Hibbs died in August, 1905, leaving surviving him Nora D. Hibbs, his widow, and the following children, as his only heirs at law, to wit: James Hibbs, Stephen A. Hibbs, Lloyd Hibbs, and Carl Hibbs, all of whom are now living. Nora D. Hibbs, hitherto mentioned, subsequently intermarried with one ______ Lee, and now his wife. Emma V. Keller, died in ...