Chamberlain v. Anderson

• Citation: 190 N.W. 501,195 Iowa 855
• Decision Date: 21 November 1922
• Docket Number: 34606
• Parties: BELLE CHAMBERLAIN et al., Appellees, v. ANDERS H. ANDERSON et al., Appellants
• Court: United States State Supreme Court of Iowa

190 N.W. 501

195 Iowa 855

BELLE CHAMBERLAIN et al., Appellees, v. ANDERS H. ANDERSON et al., Appellants

No. 34606

Supreme Court of Iowa, Des Moines

November 21, 1922

REHEARING DENIED APRIL 6, 1923.

Appeal from Audubon District Court.--E. B. WOODRUFF, Judge.

ACTION in equity, to set aside proceedings for the administration of the estate of an absentee, and certain conveyances of real estate belonging to the absentee, and for the partition of such real estate. There was a decree in the court below in favor of plaintiffs, as prayed. Defendants appeal.

Reversed.

Douglas Rogers, John A. Graham, L. L. Ryan, and Charles Bagley, for appellants.

Mantz & White, for appellees.

STEVENS C. J. WEAVER, EVANS, PRESTON, ARTHUR, and DE GRAFF, JJ concur. FAVILLE, J., dissents.

OPINION

STEVENS, C. J.

This is an action in equity, for the partition of the SE 1/4 of the NE 1/4 of Section 18, Township 79, Range 35, Audubon County, Iowa. Omitting allegations of plaintiffs' petition which, in view of the conclusion reached in this case, are immaterial, the pleading is in the usual form of a petition in equity for the partition of real estate. In addition to a general denial, the defendants set up some equitable matter, adverse possession, and the statute of limitations.

While the facts disclosed by the record present nothing of an unusual or extraordinary character, the application of the statute thereto involves some rather novel questions; and we deem it advisable, at the outset, to make a full statement of the record. Alfred Chamberlain, a resident of Audubon County, married Ida Baller, in 1890. To this union there was born one child, known in the record as Eva Hoover. Ida Baller Chamberlain died January 18, 1891, seized of the fee to the above described real estate, subject to the life tenancy of her mother. Not long after the death of his wife, Alfred Chamberlain left Audubon, and the first definite information as to his whereabouts thereafter, as shown by the record, is the testimony of various witnesses residing in Los Angeles, that he came there in 1892. He was at times employed by his brother as an engineer in a brick plant, but the occupation generally followed by him was that of a sailor. He is shown to have resided at different times in Los Angeles and San Francisco, but his last known place of residence was Tucson, Arizona. If Alfred Chamberlain ever communicated with anyone at Audubon, it was shortly after he left there, following the death of his wife. The record does not disclose where he was, when heard from. The plaintiff Belle Chamberlain and her coplaintiff, Edith Schneider, alleged in their petition that they are respectively the surviving widow and heir at law of Alfred Chamberlain.

The plaintiff Belle Chamberlain was called as a witness in her own behalf, and permitted to testify, over the objections of counsel for defendants that she was incompetent, under Section 4604 of the Code, that she was married to Alfred Chamberlain on June 11, 1893, on a vessel at Catalina, by the master of the ship, and that Edith Chamberlain Schneider was born May 29, 1897, at San Francisco. A document which she testified was the original certificate of marriage signed by the master of the vessel who performed the marriage ceremony, was offered in evidence. Photographs and other testimony offered in evidence fully identified her husband as the Alfred Chamberlain in question. Whether the testimony of Belle Chamberlain as to the marriage was, upon the record, competent or not, the testimony of other witnesses, whose competency is not disputed, seems to satisfactorily establish her claim that she was the wife, and is the surviving widow, of Alfred Chamberlain, and that Edith Schneider is his daughter. The undisputed evidence shows that Alfred Chamberlain was in Los Angeles in 1909 and 1910. Belle Chamberlain testified that she last saw her husband in 1902, and that the last letter she received from him was written in 1906, and mailed at Tucson, Arizona. Hearsay evidence was introduced, to the effect that he was in Nebraska in 1914, and in Seattle in 1919. Plaintiff testified that she investigated the rumor that he was in Seattle, and satisfied herself that it was untrue.

Eva Chamberlain intermarried with C. L. Hoover, and continued to reside in Audubon County. The life tenant died in 1910. Thereupon, Eva Hoover instituted proceedings in probate, under Section 3307 of the 1913 Supplement to the Code, for administration upon the estate of Alfred Chamberlain, as an absentee. She was appointed and qualified as administratrix of his estate, and was finally discharged by the court, May 15, 1912. The only property of Alfred Chamberlain in Audubon County was his undivided one-third interest in the 40-acre tract above described. Mrs. Hoover, as the heir of her mother, owned an undivided two thirds of the land. There were no debts against the estate, and Eva Hoover, believing herself to be the only heir of her father, took possession of the real estate, without sale. The proceedings in probate conformed to all the requirements of the statute, and are questioned by plaintiffs only in so far as it was adjudicated that Eva Hoover was the sole and only heir at law of her father.

Eva Hoover and her husband entered into a contract in writing with the defendant Peter H. Anderson, on March 4, 1911, agreeing to sell and convey the 40-acre tract to him for a consideration of $ 4,000. Pursuant to this contract, a deed conveying the property to him was executed May 16, 1912. On May 28, 1917, Peter H. Anderson conveyed the premises to his codefendant, Anders H. Anderson, who owned the same at the time of the trial below. Possession was taken by Peter H. Anderson March 1, 1912.

The petition in this case was filed February 7, 1920, and a decree in favor of plaintiffs was entered on March 2, 1921.

Counsel on both sides have treated the several sections of the Code relating to the administration and distribution of estates of absentees as in all respects valid, and we shall, therefore, without examining into or expressing any opinion as to the validity or constitutionality thereof, for the purposes of this case assume that they meet all constitutional requirements. We are not to be understood, by the foregoing statement, as intending to cast doubt upon the constitutionality of the statute. That question is not involved.

Although the material portions of the statute were copied into our opinion in the recent case of In re Estate of Kite, 194 Iowa 129, 187 N.W. 585, we again set them out herein, as follows:

"Sec. 3307 (1913 Supplement to the Code). When a resident of this state owning property therein, or any person who may have been a resident of this state, has acquired or may hereafter acquire property or property rights within the state, absents himself from his usual place of residence and conceals his whereabouts from his family without known cause for a period of seven years or any such person who has gone to parts unknown for a period of ten years, a petition may be filed in the district court of any county where such property or a part thereof is situated, setting forth such facts, by any person entitled to administer upon such absentee's estate if he was known to be dead, and setting forth the names of the persons who would be the legal heirs of the absentee if he were dead, so far as known, and praying for the issuance of letters of administration upon such estate; thereupon, said court shall prescribe a notice addressed to such absentee and heirs named, and order the same to be published in a newspaper published in said county to be designated by the court, once each week for eight consecutive weeks, and which shall be served personally upon all the heirs residing within the state in the manner, and for the length of time as is required for the service of original notices, proof of the publication and service of which in manner and for the time ordered shall, at the expiration of said period be filed with said petition, and thereupon if such absentee fails to appear, the court shall hear the proof presented, and if satisfied of the truth of the facts set forth in the petition concerning the absentee, shall order letters of administration upon the estate of such absentee to issue as though he were known to be dead. The court shall also hear proof and determine who the legal heirs of such absentee are and their respective interests in such estate.

"Sec. 3307-a. The person to whom the administration is granted shall proceed to administer and dispose of the estate in the same manner that administrators are required to dispose of and administer the estates of decedents. In addition thereto, such administrator may, under the orders of the court, sell and dispose of all real estate and other property owned by such absentee, and after the payment of legal costs, expenses and claims, make distribution of the proceeds thereof to the persons entitled thereto. The provisions of law regarding application, notice and manner of sale of real estate for the payment of debts by administrators shall be followed so far as applicable.

"Sec. 3307-b. Administration upon the estate of an absentee shall forever bar his or her right of homestead and statutory distributive share or interest in and to any real estate owned or held by the spouse of such absentee, or in which said spouse may have a legal or equitable interest, and a conveyance thereof by such spouse after one year from and after such administration has been granted, shall be free and clear of any claim or right of homestead or statutory distributive share on the part of such absentee."

The law is settled in this state, and in most, if not all, other jurisdictions, that the legislature may...