Clapper v. Clapper

• Decision Date: 03 May 1955
• Docket Number: No. 48741,48741
• Parties: Henry Edward CLAPPER, Marion W. Clapper, Clyde Earl Clapper, C. L. Van Scyoc, Alta Forney and Henry Doty, Appellees, v. Warren CLAPPER, Rena Clapper, Glee Clapper, Freda Clapper Woods, Leland Clapper, Paula Maxine Ambrose, Elda Lybarger, Faye Louis Clapper, Darlene Danley, Donald Glen Clapper, Robert Clapper, Wanda Clapper, a minor, Bryan Clapper, Ruby Winston, Pearl Timson, Paul Clapper, Roy Clapper, Esther Omer, Ella Marie Clapper, Pearl Smay, Madison Van Scyoc, Roland Nixon, and Ruth A. Nixon, Appellants.
• Court: Iowa Supreme Court

Page 145

70 N.W.2d 145

246 Iowa 899

Henry Edward CLAPPER, Marion W. Clapper, Clyde Earl Clapper, C. L. Van Scyoc, Alta Forney and Henry Doty, Appellees, v. Warren CLAPPER, Rena Clapper, Glee Clapper, Freda Clapper Woods, Leland Clapper, Paula Maxine Ambrose, Elda Lybarger, Faye Louis Clapper, Darlene Danley, Donald Glen Clapper, Robert Clapper, Wanda Clapper, a minor, Bryan Clapper, Ruby Winston, Pearl Timson, Paul Clapper, Roy Clapper, Esther Omer, Ella Marie Clapper, Pearl Smay, Madison Van Scyoc, Roland Nixon, and Ruth A. Nixon, Appellants.

No. 48741.

Supreme Court of Iowa.

May 3, 1955.

L. T. Genung, Glenwood, and Peterson, Smith, Peterson, Beckman & Willson, Council Bluffs, for appellants.

Cook & Drake, Glenwood, for appellees.

OLIVER, Justice.

This is a real estate partition suit but the appeal is only fron an adjudication construing a will to provide that the remaindermen, (children of testator's children) take the property per stipes and not per capita. The parties are beneficiaries under the will of Henry W. Clapper, who died in 1917. His wife, Margaret E. Clapper, predeceased him in 1916. His will, made in 1905, provides:

1st. Directs payment of funeral expenses and debts.

2nd. Gives testator's wife Margaret, all of the 'balance' of his personal property including cash, etc.

'3rd. I direct that the use or rental of all of my real estate viz, * * * (describing 281 1/4 acres of land), be given to my widow, Margaret E. Clapper during her life time, or so long as she shall remain my widow.

'4th. At the death of my wife Margaret E. Clapper or in the event she should remarry, then at that time the use or rental of the above described real estate shall go to my children during their life time, and at their death shall be divided equally, and shall vest in 'fee simple' between their children.'

5th. 'Appoints' an executor.

The will contains no residuary clause or express substitutionary provisions.

Testator was survived by four children, none having predeceased him, and by one or more children of each child. Testator's four children died in 1930, 1938, 1942 and 1953 respectively. One of said children was the parent of one son, another of two children, and another of three children. These six grandchildren of testator are living and constitute all of the plaintiffs. Testator's other child was the father of ten children. These ten (with the widow and children of each of three who are deceased, substituted for him) are defendants. The only issue submitted to the trial court was whether testator's grandchildren take the real estate per stirpes or per capita. The court construed the will to require the distribution among the grandchildren to be per stirpes. We granted defendants an interlocutory appeal.

Upon appeal the issue is again limited to the proper construction of the will and particularly the 4th paragraph thereof. The primary consideration in such cases is the determination of the intention of the testator as expressed in the will. In re Estate of Syverson, 239 Iowa 800, 804, 805, 32 N.W.2d 799, and citations.

Testator's wife having predeceased him, the provision giving testator's children the use or rental 'during their life time' became effective immediately upon testator's death. Omitting the reference to testator's wife, the 4th paragraph of the will states: 'the use or rental of the above described real estate shall go to my children during their life time. and at their death shall be divided equally and shall vest in 'fee simple' between their children.' The provision for testator's children created a tenancy in common in the land during the life of each child. Section 557.15, Code of Iowa 1954, I.C.A.

Appellees contend the will shows testator intended that the remainder of the one fourth share in the use of the land which each of testator's children held for life go to such life tenant's children equally at his death, which would result in a per stirpes distribution. Appellants contend the will shows testator intended a per capita distribution among the children of his children. No Iowa decision factually in point has been brought to our attention.

In Claude v. Schutt, 211 Iowa 117, 233 N.W. 41, 78 A.L.R. 1375, a testator's will gave to the unnamed children of a named living son, also to the unnamed children of a named deceased son, also to five other individually named living sons and daughters, "the balance of the undivided portion of the proceeds of my estate, share and share alike." Hold that, although the phrase "share and share alike" imports a per capita division, the rule is faint and yields to other provisions indicating each of the two sets of grandchildren, which was named as a class, was given one 'portion' in lieu of its parent. The decision quotes from and follows Canfield v. Jameson, 201 Iowa 784, 208 N.W. 369, a similar case. This case discusses Kling v. Schnellbecker, 107 Iowa 636, 78 N.W. 673, Johnson v. Bodine, 108 Iowa 594, 79 N.W. 348; Kalbach v. Clark, 133 Iowa 215, 110 N.W. 599, 12 L.R.A.,N.S., 801, and Parker v. Foxworthy, 167 Iowa 649, 149 N.W. 879. These are cited in the briefs in the case at bar. None of them furnishes much help here. However, provisions such as those found in this will have been considered by other courts and principles have been enunciated and rules of construction adopted to aid in determining the testatorial intent.

Dills v. Deavors, Ky., 266 S.W.2d 788, 789, was an action to determine rights under a deed to grantor's three children which provided "they are to have full possession of the same so long as they live, and at their death it is then to go to their bodily heirs * * *." By "their bodily heirs", it was held grantor meant the respective bodily heirs of each child, and not the bodily heirs of all three, as a group or class to be determined upon death of all three children. The decision states:

'It appears to be the prevailing rule that where land is conveyed or devised to several persons for life and at 'their death' to 'their' children or bodily heirs, the phrase 'their death' will be read 'their respective deaths' and the phrase 'their children' or 'their bodily heirs' will be read 'their respective children' or 'their respective bodily heirs'. Annotation, 16 A.L.R. 123; 57 Am.Jur., Wills, sec. 1315, p. 870.'

Horne v. Horne, 181 Va. 685, 26 S.E.2d 80, 84, holds the words 'their children' when employed in gifts of future estates after life estates given to two or more brothers or sisters with remainder "'to their children"' mean "'their respective children"'. The decision states: "These words necessarily mean their respective children because no children could be the children of both brothers." It quotes from and follows In re Hutchinson's Trust, 21 Ch.Div. 811, 816, in which the will provided, "after the decease of F.H.S. and R.S. to their children share and share alike, and to their heirs forever. * * * 'this must mean their respective children, because there...