Brunk v. Brunk

• Decision Date: 24 October 1912
• Citation: 137 N.W. 1065,157 Iowa 51
• Parties: J. W. BRUNK, BERTHA WRAY and EFFA MILLIGAN, v. BARNEY B. BRUNK, Administrator et al., and ELIZABETH BRUNK, Intervener, Appellants
• Court: Iowa Supreme Court

137 N.W. 1065

157 Iowa 51

J. W. BRUNK, BERTHA WRAY and EFFA MILLIGAN, v. BARNEY B. BRUNK, Administrator et al., and ELIZABETH BRUNK, Intervener, Appellants

Supreme Court of Iowa, Des Moines

October 24, 1912

Appeal from Davis District Court.--HON. M. A. ROBERTS, Judge.

IN a probate proceeding to set aside an order previously made for the sale of real estate and for the removal of the administrator, the widow of decedent intervened, claiming to be the owner in fee simple of the real estate, the sale of which had been ordered by the court, and asking that the will of her husband, Salem Brunk, the decedent, be construed and her rights thereunder be determined and fixed. There was a decree setting aside the order of sale, discharging the administrator, and ordering a sale of only so much of the property as should be found necessary to satisfy the debts of the estate and taxing a portion of the costs of the proceeding to the defendants and the intervener. The intervener appeals from the decree so far as it determines her rights in the estate, and the defendants appeal from the provision of the decree taxing to them a part of the costs. --Affirmed.

Affirmed.

John F Scarborough, for appellants.

Taylor & Ramseyer, for appellees.

OPINION

MCCLAIN, C. J.

For the disposal of the questions raised on this appeal, the following facts only seem to be material: In 1905, Salem Brunk executed his last will in the following terms:

First. I will all of my real estate and personal property to my wife Elizabeth Brunk, while she remains my widow.

Second. If she should fail to be my widow during her lifetime, she is to have one-third of all my real estate and personal property and the balance is to be divided equally between my children with the exception of the following: My eldest son, J. W Brunk, is to pay the other heirs out of his part for property received when he was married in his 21st year, four hundred dollars ($ 400.00) and for property and surety debts for him since $ 250.00, total $ 650.00. And my second son John H. Brunk is to pay out of his part $ 110.00, and my third son Ira Brunk, is to pay one thousand and three hundred dollars for furniture store I furnished him with in the year 1901 and on other property and security debts. Total $ 1,300. My wife is to take charge of everything and use to the best of her knowledge without any bond and security, and that all that is left at her second marriage or death is to be divided as stated above if there is that much left, and if the property should decrease in the proportionment.

This will, on the death of the testator, was duly probated. On intervener's application for a construction of the will, the court held that, not having married, she was entitled to a life estate only in the land described in the will. Her contention is that she became the fee-simple owner, or if not the owner in fee simple, that she had, in addition to a life estate, an absolute power of disposal of the property.

I. The first paragraph plainly amounts to a devise for life subject to a condition with reference to marriage. As she has not married, she has only a life estate unless the provisions of the second paragraph are to be so construed as to indicate an intention on the part of the testator that his widow shall take the property absolutely. The language of the first paragraph is not broader in its...