Chick v. Ives

• Decision Date: 08 May 1902
• Parties: CHICK v. IVES ET AL.
• Court: Nebraska Supreme Court

2 Neb. [Unof.] 879

90 N.W. 751

CHICK

v.IVES ET AL.

Supreme Court of Nebraska.

May 8, 1902.

Commissioners' opinion. Department No. 2. Appeal from district court, Saline county; Stubbs, Judge.

“Not to be officially reported.”

Action by Thomas Chick against J. K. Ives and others. Judgment for plaintiff, and certain defendants appeal. Reversed.D. J. Flaherty, J. R. Webster, M. H. Fleming, and James W. Dawes, for appellants.

F. I. Foss, for appellee.

BARNES, C.

On the 5th day of October, 1877, John D. Glade, who then resided in Jackson county, Iowa, made his last will and testament, which is as follows: “I, John D. Glade, of Jackson county, Iowa, being of sound mind and memory, do make, publish, and declare this my last will and testament. (1) I give and bequeath to my beloved wife, Louise Catherine Glade, one-third of all my money and property; and this bequest is expressly intended to be in lieu of dower and all rights under the law. (2) I give and bequeath to my children all the balance of my estate, the same to be divided equally among all my children. (3) I direct the portion of my estate given to my children be invested at interest upon unincumbered real estate security, and that, upon my children respectively reaching the age of twenty-four years, each shall receive his or her share thereof, and not sooner; it being my intention to keep at interest, and out of the control of my children, that portion of my estate going to them till they respectively reach the age of twenty-four; and upon reaching that age each is to receive his or her respective share, and not sooner. (4) I further give to my said wife all the interest arising from that portion of my estate given to my children until the same is paid over as directed to them. (5) I further direct that my wife be executrix of this, my last will, and that she be exempted from giving the bonds as such usually required.” After making said will he moved to Crete, Neb., and invested his property in real estate, consisting of a farm of 400 acres of land, a certain lot or tract of land in the city of Crete, and a block in Normal, Lancaster county, Neb. The farm is situated near the city of Crete, and is a valuable tract of land. His estate remained in this situation until the year 1893, when he departed this life. Shortly after his death this will was duly probated, and the executrix accepted the trust, qualified, and entered upon her duties. At the time of the death of the testator four of his seven children, to whom, by the terms of the will, he bequeathed two-thirds of his estate, had arrived at the age of 24 years. One of the defendants in this case, to wit, Emma L. Ives, and who was one of the heirs under the will, at the time of her father's death was 27 years old. None of the real property owned by the testator at the time of his death had been sold up to the time of the commencement of this suit. On the 19th day of October, 1896, the said Emma L. Ives and her husband, J. K. Ives, made, executed, and delivered to the plaintiff in this case their three promissory notes, amounting in the aggregate to the sum of $1,596.00, the last of which became due on the 19th day of October, 1897. To secure the payment of these notes, the defendants Emma L. Ives and J. K. Ives executed and delivered to the plaintiff a mortgage in due form of law, by which they conveyed to him whatever right, title, or interest the said Emma L. Ives had in the undivided one-seventh of two-thirds of her father's real estate. The mortgage described the real estate, and was duly recorded. Default being made in the payment of the notes, this action in foreclosure was commenced. J. K. Ives, Emma L. Ives, the American Exchange National Bank, L. H. Denison, Charles Yearger, Henry Griebel, and Louise C. Glade were made defendants. J. K. Ives and Emma L. Ives filed separate answers to the petition. J. K. Ives admitted the execution and delivery of the notes and mortgage above mentioned, and set forth the fact that the consideration therefor was an indebtedness contracted by wagering or gambling on the board of trade in optional dealings in grain, and was therefore void. Emma L. Ives, in her answer, as a defense, alleged her coverture; that she executed the mortgage and notes under duress and through fear, and by reason of threats made on the part of the plaintiff to prosecute her husband for embezzlement, and send him to the penitentiary; that otherwise she would not have signed the same; that she is the daughter of John D. Glade, and whatever right she had to the mortgaged property was acquired through and by his will; that there has never been any partition of the estate; that the will worked an equitable conversion of the estate into money; and that therefore plaintiff took nothing by his mortgage. The defendant, Louise C. Glade, by her answer, denies the allegations in the petition, and sets up that John D. Glade made a will giving her one-third of all his estate, and the balance to his children; that the will was duly probated; that the rest of the defendants had judgments against the estate of Emma L. Ives, and that she is informed by counsel that the estate did not pass to the heirs at once, but remained in her in trust till all the heirs reached the age of 24 years; that the mortgage given by Emma L. Ives casts a cloud upon the title of the estate, and prevents the answering defendant from performing her trust, and affects the salable value of the land; that she has advanced Emma L. Ives money to the extent of her share in the estate, and that she is entitled to be reimbursed before the plaintiff or any of the other defendants are paid; that she has furnished board to Emma L. Ives, her husband and children, at her request, and charged the same to her account; that said money and board so advanced to Emma L. Ives amounts to the sum of $1,822.41, for which she is entitled to be first paid out of the share of said Emma L. Ives in the estate; that the will, by its terms, worked an equitable conversion of the real estate into money; and that the plaintiff, by his mortgage, took no right, title, interest, or lien in or to the said real estate. The American Exchange Bank, Henry Griebel, and Charles Yearger each answered by way of cross petitions, setting up their judgments obtained against the said Emma L. Ives; and each prayed for a decree establishing the priority of liens upon the estate, the marshaling of assets, and the payment of their said judgments out of the interest of the said Emma L. Ives therein. Proper replies were filed to these answers. The cause was tried in the district court of Saline county, and the court found for the plaintiff, and rendered a decree foreclosing the mortgage. Exceptions were taken to the findings by the defendants J. K. Ives, Emma L. Ives, and Louise C. Glade, who thereupon brought the case to this court by appeal.

The main questions involved in this appeal are the construction of the will, and the law to be applied thereto. It is contended on the part of the appellants that under the terms of the will there was an equitable conversion of the real estate of the testator into money; that by reason thereof the mortgage executed by Emma L. Ives and her husband to the plaintiff created no lien upon her portion of the estate. In other words, that the plaintiff took nothing by his mortgage. On the other...