Canfield v. Jameson

• Decision Date: 06 April 1926
• Docket Number: 37108
• Citation: 208 N.W. 369,201 Iowa 784
• Parties: W. M. CANFIELD, Executor, Appellee, v. FLORENCE E. JAMESON et al., Appellees; ROY D. HOUDERSHELDT, Appellant
• Court: Iowa Supreme Court

208 N.W. 369

201 Iowa 784

W. M. CANFIELD, Executor, Appellee, v. FLORENCE E. JAMESON et al., Appellees; ROY D. HOUDERSHELDT, Appellant

No. 37108

Supreme Court of Iowa, Des Moines

April 6, 1926

Appeal from Polk District Court.--LESTER L. THOMPSON, Judge.

ACTION in equity by the executor for the construction of a will.From the decree entered, one of the legatee-defendants appeals.

Reversed.

James H. Hall and Lorentzen & Shepherd, for appellant.

John L Gillespie, for the executor, appellee.

VERMILION J. DE GRAFF, C. J., and STEVENS and FAVILLE, JJ., concur.

OPINION

VERMILION, J.

The second paragraph of the will in question is as follows:

"To the heirs of Anna L. Houdersheldt Kinney, my beloved daughter deceased I hereby bequeath the sum of one dollar."

The third, fourth, fifth, sixth, and seventh paragraphs are bequests of $ 1.00 to each of five children by name.The eighth paragraph is as follows:

"To my dearly beloved wife, Almira Houdersheldt, I hereby devise and bequeath the residue of my estate, including both my real estate and my personal property to have and to hold in fee simple to herself and her heirs and assigns forever.But in case my dearly beloved wife, Almira Houdersheldt, shall die before this will is admitted to probate, then or in tat event, it is my will and testament that this instrument remain in full force and effect, except the bequeath to my dearly beloved wife mentioned in Section eight.Furthermore, it is my will and desire in case of my wife's death, that the residue of my estate mentioned in Section eight be divided among my several heirs as follows, to wit: I hereby devise, bequeath and direct that the residue of my estate mentioned in Section number eight, be equally divided between my above named children, their heirs or assigns share and share alike."

The wife, Almira, died before the death of the testator, who left surviving him the five children named in Paragraphs 3 to 7, inclusive, and three grandchildren, who were children and heirs of the deceased daughter named in the second paragraph of the will.

The question presented is whether the living children named in the will and the children of the deceased daughter take per capita, each an equal share in the estate, or whether the grandchildren take per stirpes,--that is, together only such share as their mother would have taken, had she survived the testator.The court below held that they took per capita, and Ray D. Houdersheldt, a son, has appealed.

There is no contention that the heirs of the daughter Anna, who was dead at the date of the execution of the will, are not entitled to a portion of the estate.The sole question is whether such heirs take per capita or per stirpes.

We have held that, when an estate is to be divided equally between certain persons, whether specifically named or designated by more general terms as the children or heirs of certain persons, the language imports the taking of an equal share by each legatee, in the absence of other provisions showing a contrary intention, and that they take per capita.Kling v. Schnellbecker,107 Iowa 636, 78 N.W. 673;Johnson v. Bodine,108 Iowa 594, 79 N.W. 348.

In the Klingcase, supra, the estate was to be "equally divided between my sister and my wife's sisters and brothers," and it was held that they took per capita.In Kalbach v. Clark,133 Iowa 215, where the estate was to be equally divided among the heirs of four children, we held that the distribution should be per capita.In Parker v. Foxworthy,167 Iowa 649, 149 N.W. 879, the will provided that the estate "shall be distributed to my heirs share and share alike," and a distribution per capita was upheld.In the Johnsoncase, supra, the estate was to be "divided between my heirs at law," and we recognized that the rule announced above "will yield to a very faint glimpse of a different intention in the context."We further said that a devise to heirs, whether to one's own heirs or to the heirs of a third person, designated not only the persons who should take, but also the proportions in which they were to take; and that, where there are no words to control, the law presumes the intention of the testator to be that they shall take as heirs would take under the rules of descent.We there held, in the absence of words indicating an intent to the contrary, that the distribution should be per stirpes.

There is in the clause in question no recognition by the testator that his daughter Anna was then dead, although in the second paragraph of the will he does recognize that fact.It cannot be doubted that, had all the testator's children been living at the execution of the will, and one of them had thereafter died, or had one of the then living children died his or her heirs would, under the clause in question, have taken only the share which such child would have taken.In such case, it is clear that the heirs of a deceased child would have taken by representation only the share...