Bussing v. Hough

• Decision Date: 05 February 1946
• Docket Number: 46822.
• Citation: 21 N.W.2d 587,237 Iowa 194
• Parties: BUSSING et al. v. HOUGH et al. (BUSSING et al., Interveners).
• Court: Iowa Supreme Court

21 N.W.2d 587

237 Iowa 194

BUSSING et al. v. HOUGH et al. (BUSSING et al., Interveners).

No. 46822.

Supreme Court of Iowa

February 5, 1946

Stipp, Perry, Bannister, Carpenter & Ahlers, of Des Moines, for appellant.

Robert Brooke, of West Liberty, and Musmaker & Musmaker, of Greenfield, for interveners and appellees.

Harry D. Byers, of Adair, for other appellees.

OLIVER Justice.

M. R. Hough of Adair county, Iowa, died without issue. His entire estate was situated in Iowa. His will there executed in 1912, was in 1913 admitted to probate in Adair county. Item I of the will directs the payment of debts. Item II disposes of the remainder of testator's estate as follows:

'I. To B T. Hough and W. H. Burr, Trustee in Trust for my beloved wife, Elizabeth Hough, the undivided one-third of all of said rest, residue and remainder of my said estate, real, personal and mixed, said Trustees to control said property during her natural life time, then said property to be distributed among the heirs of my said wife or as she may direct.

'To the said B. T. Hough and W. H. Burr, Trustees in Trust, a life estate to my beloved wife, Elizabeth Hough, in the remaining two-thirds of said rest, residue and remainder of my said estate, real, personal and mixed, all of which shall be in lieu of all of her statutory rights in and to my said estate.

'I hereby direct that said Trustees keep my said estate intact during the life time of my beloved wife, Elizabeth Hough, and that they shall invest the moneys and credits in first mortgage securities not to exceed one-half of the value of said security.

'I further direct that my said Trustees turn over to my beloved wife, during her natural life time, the entire income from my entire estate, semi-annually from the date of my death.'

Other provisions of Item II, disposing of the remainder of said remaining two thirds, upon the death of the wife, are not involved in this appeal.

The surviving spouse, Elizabeth Hough, did not remarry. She moved to California and died there in 1944 possessed of $24,000 of her own, deposited in California banks, and other property. Her will, executed in California, was there admitted to probate and was thereafter probated in Adair county, Iowa, as a foreign will. After minor bequests of money and personal property to several persons and the remainder of decedent's household effects to 'my faithful nurse and companion, Mrs. Harryiette Wehr,' the will provides 'Fourth. I hereby give, devise and bequeath to the said Mrs. Harryiette Wehr all the rest, residue and remainder of my estate of whatsoever kind and nature and wheresoever situated.'

This action in partition was brought by the heirs at law of Elizabeth Hough (some appear as interveners) claiming, under Par. I of Item II of the will of M. R. Hough (above quoted), an undivided one third interest in certain Iowa real estate. Said real estate consists of all the real estate originally belonging to said trust estate, and also other real estate secured by said trust by the foreclosure of mortgage held by it. All of the assets of the trusts were and are in Iowa. Defendant Harryiette Wehr claimed ownership of the same undivided one third, under the above-quoted residuary clause of the will of Elizabeth Hough. The trial court adjudged that plaintiffs and interveners owned said one third and Harryiette Wehr had no right thereto. Harryiette Wehr has appealed.

I. Appellant contends the will of M. R. Hough did not create a power of appointment in Elizabeth Hough to dispose of said one third interest in the trust estate at her death, but that it gave her the absolute ownership of the equitable fee therein.

This court has frequently determined whether certain provisions of a will created a life estate or a fee. Although, in most cases the will interpreted differs from all other wills, certain rules of interpretation are generally recognized. Two of said rules quoted in Law v. Douglass, 107 Iowa 606, 610, 78 N.W. 212, 213, are as follows:

'First. If the primary gift conveys and vests in the first taker an absolute interest in personal, or an absolute fee simple in real, property, it exhausts the entire estate, so that there can be no valid remainder. Second. A life estate, expressly created, will not be converted into a fee, absolute or qualified, or into any other form of estate greater than a life estate, merely by reason of there being coupled with it a power of disposition, however general or extensive. * * *

'The distinction between the attempt to devise the estate remaining after the death of the devisee to whom the absolute fee has been given and the remainder after the exercise of the power of disposition thereof as a separate interest, where a life estate only is given, should be observed. To the gift of a life estate may be annexed the right to sell the remainder for defined purposes, as a separate gift, and a devise of the part undisposed of is held good.'

The decision states that in Collins v. Wickwire, 162 Mass. 143, 38 N.E. 365 (where the wife was given the estate to have and hold for her use and benefit during her natural life, with the right to dispose of the same by gift or will at her decease), 'the distinction is pointed out: 'On the other hand, in this state, and generally elsewhere, this principle is held not to be applicable where the will purports only to give a life estate to the first taker, with merely a power of disposition of the remainder as a separate interest. In such a case, if the power is executed, the property passes under the original will, through the execution of the power, to the person designated: and, if it is not executed, it remains to be affected by the other provisions of the will, or to pass as undevised estate of the testator.''

In the case at bar the will gave the one third of the estate to the trustees in trust for the wife, said trustees to control the same and turn over the income to the wife during her natural lifetime, then said property to be distributed among the heirs of said wife or as she may direct. It is clear the will did not give the wife the one third interest absolutely or in fee. She was given only the income for life. She was not empowered to consume any of the corpus or to distribute it during her lifetime. The power of distribution given her was limited to the remainder.

In Steiff v. Seibert, 128 Iowa 746, 749, 105 N.W. 328, 6 L.R.A.,N.S. 1186, the wife was given the use of the property for life with the power of disposal during her life and also by gift, will or otherwise. It was held this gave her a life estate with power of disposal, and not an estate in fee simple.

Among other authorities to the same effect are: Spaan v. Anderson, 115 Iowa 121, 88 N.W. 200; Olson v. Weber, 194 Iowa 512, 187 N.W. 465; 27 A.L.R. 1370; Paxton v. Paxton, 141 Iowa 96, 119 N.W. 284; Pool v. Napier, 145 Iowa 699, 124 N.W. 755; Iowa City State Bank v. Pritchard, 199 Iowa 676, 678, 202 N.W. 512; In re Cooksey's Estate, 203 Iowa 754, 208 N.W. 337; Mann v. Seibert, 209 Iowa 76, 227 N.W. 614; Carpenter v. Lothringer, 224 Iowa 439, 275 N.W. 98.

The will in Harlan v. Manington, 152 Iowa 707, 133 N.W. 367, 368, provided that the 'third part shall be by said executors invested in productive real estate in severalty for their several uses and the title so arranged that the said grandchildren or their heir or heirs in case either of them shall have deceased leaving issue surviving them shall receive the net income of such real estate, and when of lawful age control the use thereof during the natural lives of said devisees and such devisees shall have full power to dispose of the remainder of said real estate by will and in default of such will said remainder shall descend to the lawful heir or heirs of such devisee.'

In that case appellant contended Henry N. Manington a devisee (grandchild) took a fee because of absolute power of disposition given him by the will, and for the further...