Busby v. Busby

• Decision Date: 16 January 1908
• Citation: 114 N.W. 559,137 Iowa 57
• Parties: SUSAN E. BUSBY, Appellee, v. R. C. BUSBY ET AL., Appellants
• Court: Iowa Supreme Court

114 N.W. 559

137 Iowa 57

SUSAN E. BUSBY, Appellee, v. R. C. BUSBY ET AL., Appellants

Supreme Court of Iowa, Des Moines

January 16, 1908

Appeal from Linn District Court.--HON. B. H. MILLER, Judge.

ACTION in equity to construe the provisions of an instrument of will, and for general equitable relief. Trial was had and a decree entered, to which defendants took exception, and they appeal.

Affirmed.

W. F Fitzgerald, for appellants.

Voris & Haas, for appellee.

OPINION

BISHOP, J.

It was conceded on the trial that George Busby, late of Linn county died testate, and that his will was duly admitted to probate in April, 1899; that he left surviving him plaintiff, his widow, and among other heirs at law the defendants B. C Irwin, and Roy Busby, sons by a former wife. The will was executed in the year 1888, and in the first paragraph thereof the homestead, consisting of two lots in Marion, with buildings, etc., is devised by the testator to his wife, and in the paragraph there are no words of limitation. In the second paragraph there is a bequest of $ 3,000 to his wife, and payment thereof is directed to be made at the expiration of one year after his death. The third paragraph reads as follows: "I also give and bequeath to my said wife the sum of five thousand dollars, to be held and guarded as in trust for my said wife by my executors, and invested by them as more particularly herein set out, and the use or income of the same paid to her as she may need for her support." The fourth paragraph is in these words: "These bequests above made in the first, second and third provisions of this my will is on the express conditions and only to be paid to her or title passing, on her remaining my widow, and in case of her remarriage said property is to revert to my children, B. C., Irwin, and Roy Busby, real estate as well as the several sums above named." In the succeeding paragraphs, 5 to 8, inclusive, specific bequests are made to various persons. In the ninth paragraph it is said: "The remainder of my property of every kind and description after the above mentioned sums have been provided for, I give and bequeath to my three sons B. C., Irwin and Roy Busby, however, upon the following conditions and terms, that is to say, that the business as now carried on under the firm name of Busby & Son as dealers in lumber, etc., shall be continued by the formation of a stock company . . . the capital stock to be not less than fifteen thousand dollars, said sum to be made up in this manner, the five thousand dollars directed to be invested or held in trust for my said wife as named in the third paragraph of this my will, shall be invested for her share or use, and she is to be the owner to that extent; the remaining ten thousand dollars to be taken out of the respective shares of my three sons above named," etc. In the eleventh paragraph it is provided that the profits and losses of the stock company shall be received or borne, as the case may be, in proportion to the amount invested; "that is by my said wife on her five thousand dollars investment, and my said sons on their investment." In a codicil executed in the year 1889 it is recited by the testator that, having sold out his lumber interests, "I desire to make a change in my will in the following manner: (1) My wish and desire is, and I hereby direct, that the interests and shares as by me expressed heretofore shall be the same in dollars and cents except now that the Knowlton farm I give to my sons Irwin and Roy Busby to be charged to them at the rate of forty dollars per acre; 2. That the said five thousand dollars I heretofore gave to my wife, shall remain on the said Knowlton farm as a lien in her favor, to draw interest at six per cent., that is to say, that this sum is set apart to her, of which she takes and to have the use and income therefrom only as long as she remains my widow," etc. In a further codicil executed in 1895 the provisions of the original will having relation to the formation of a stock company are revoked, and there are some changes made in the specific devises other than those made to his wife.

In her petition plaintiff, who has remained the widow of the testator, George Busby, sets forth that a controversy has arisen between herself and the defendants concerning their respective rights under the will, and particularly as to the nature and extent of the interests granted to her by the first and third paragraphs of that instrument; and it is her contention that, in virtue of the first paragraph, she became the owner of the homestead property in fee, and in virtue of the third paragraph that the sum of $ 5,000 set apart and secured by lien on the Knowlton farm became her property in absolute right. The defendants in answer deny that plaintiff has more than a life estate, and allege that this is conditioned upon her remaining the widow of the testator. It is then alleged as a further and special defense that, after the probate of the will, all parties interested in the estate construed and understood the terms of the will to give to plaintiff a life estate only, and during the time of such understanding the defendants B. C. Busby and Roy Busby purchased of the defendant Irwin Busby his entire interest in said estate including the remainder interest in the homestead property and the legacy of $ 5,000, "all of which was based on the fact that plaintiff had only such life estate, and she acquiesced in the same, and the rights of the said defendants B. C. and Roy Busby then became vested and fixed, and plaintiff became estopped," etc....