Canfield v. Jameson
| Decision Date | 06 April 1926 |
| Docket Number | No. 37108.,37108. |
| Parties | CANFIELD v. JAMESON ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; 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, of Marshall, Minn., and Lorentzen & Shepherd, of Des Moines, for appellant.
John L. Gillespie, of Des Moines, for appellee executor.
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 to each of five children by name.
The eighth paragraph is as follows:
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.
[1] 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, 78 N. W. 673, 107 Iowa, 637;Johnson v. Bodine, 79 N. W. 348, 108 Iowa, 594.
[2] In the Kling Case, supra, the estate was to be “equally divided between my sister and my wife's sisters and brothers,” and it was held they took per capita. In Kalbach v. Clark, 110 N. W. 599, 133 Iowa, 215, 12 L. R. A. (N. S.) 801, 12 Ann. Cas. 647, where the estate was to be equally divided among the heirs of four children, we held the distribution should be per capita. In Parker v. Foxworthy, 149 N. W. 879, 167 Iowa, 649, the will provided the estate “shall be distributed to my heirs share and share alike,” and a distribution per capita was upheld. In the Johnson Case, 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, the distribution should be per stirpes.
[3] 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...
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