Claude v. Schutt

• Decision Date: 18 November 1930
• Docket Number: 40500
• Parties: GEORGE A. CLAUDE et al., Executors, Appellees, v. ANNA SCHUTT et al., Appellees; HENRY LEWIS CLAUDE et al., Appellants
• Court: Iowa Supreme Court

233 N.W. 41

211 Iowa 117

GEORGE A. CLAUDE et al., Executors, Appellees, v. ANNA SCHUTT et al., Appellees;

HENRY LEWIS CLAUDE et al., Appellants

No. 40500

Supreme Court of Iowa, Des Moines

November 18, 1930

Appeal from Wright District Court.--O. J. HENDERSON, Judge.

Action brought by the executors of Adolphe Claude to construe his will. The defendants named comprise the beneficiaries of the will, and include all the surviving children of the testator and the children of a deceased son, and likewise the two children of one surviving son, both of whom were included as beneficiaries in the will. From the decree entered in the district court, the two children of the surviving son, Robert L. Claude, appeal.

Affirmed.

Nagle & Hill, for appellants.

F. D Riley, for Robert L. Claude and Julia Claude, appellees.

Birdsall McGrath & Archerd, for other appellees.

EVANS J. MORLING, C. J., and FAVILLE, KINDIG, and GRIMM, JJ., concur.

OPINION

EVANS, J.

The testator was survived by four sons and three daughters and by the four children of his deceased son Albert. Paragraphs I and II of the will are formal. The remaining paragraphs thereof are as follows:

"III. I do hereby give, devise and bequeath unto my beloved wife, Hulda Claude, one third of all monies, credits and personal property and one third of all proceeds of all my real estate, and to my beloved son, C. P. Claude, I do hereby give, devise and bequeath the sum of $ 10.

"IV. I do hereby give, devise and bequeath unto my beloved son, Robert L. Claude's children, to Rosa May Melvin, to George A. Claude, Victor A. Claude, Anna C. Schutt, Mary Doolittle, and the children of my deceased son, Albert A. Claude, the balance of the undivided portion of the proceeds of my estate, share and share alike.

"V. I do hereby give, devise and bequeath unto my beloved wife, Hulda Claude, for her sole and separate use during her life, our home in Woolstock, Wright County, Iowa, including all household goods, and upon her death, this property shall be sold and divided among my children, share and share alike.

"VI. I hereby appoint as administrators of my estate without bond, Victor Claude and George A. Claude, and I hereby further appoint as trustees under bond of the portion of my estate heretofore bequeathed to Robert L. Claude's children, Victor Claude and George A. Claude.

"VII. I hereby appoint as trustee for the portion of my estate heretofore bequeathed to my deceased son's children; namely, Albert C. Claude, their mother, Edna Claude, under bond."

The controversy centers upon Paragraph IV. The question raised is whether the four children of the deceased son Albert and the two children of the surviving son Robert L. Claude, all of whom are included as beneficiaries of the will, take thereunder per capita, or per stirpes. The district court held that the children of the testator named as beneficiaries in Paragraph IV took per capita, and that the two sets of grandchildren included in said paragraph each took a child's share per stirpes.

The contention for the appellants is that they should be deemed each to take per capita with all the other beneficiaries named. This contention is predicated primarily upon that provision of the will which provides that the beneficiaries shall take share and share alike. Reliance is had upon the proposition often announced, that the phrase "share and share alike" imports a per capita division, in the absence of terms indicating a contrary intention. Kling v. Schnellbecker, 107 Iowa 636, 78 N.W. 673; Johnson v. Bodine, 108 Iowa 594. It is urged that the operation of this rule is conclusive upon the controversy presented herein.

It is, however, quite generally held by the courts that the rule of construction here stated is "faint," rather than strong, and that it yields readily to counter indications in the terms of the will. In the case of Johnson v. Bodine, 108 Iowa 594, 79 N.W. 348, cited by the appellant, we said:

"'This rule will yield to a very faint glimpse of a different intention in the context.'"

In that case we held that the grandchildren referred to in the will as heirs of their parents took as a class, and therefore per stirpes, and not per capita.

And again, in Canfield v. Jameson, 201 Iowa 784, 208 N.W. 369, we said:

"When the bequest is to several named individuals, and to others as a class, the latter generally take per stirpes; but this rule, too, yields when the testator used language indicating an intention that the members of the class should share equally with the named individuals."

Our holding in this latter case has very important bearing upon the case before us.

In support of his conclusion, the trial court relied mainly upon the following considerations:

(1) The children of the testator were named individually; whereas each of the two sets of grandchildren was named as a class.

(2) The language of Paragraphs VI and VII indicates the understanding of the testator that each set of grandchildren took one "portion."

(3) The fact that the son Albert was known by the testator to be deceased, and survived by his widow and children, is suggestive of an intention to give to the children of such deceased son the benefit of the "portion" which he would have given to Albert, if living.

To this may be added the fact that the will gives no indication of a purpose to favor one set of grandchildren over the other. If, therefore, the will was properly construed as to the children of Albert, consistency requires that the same construction be applied to the children of Robert L. This precise question had careful consideration by us in the Canfield case cited. In that case one set of grandchildren comprised the children of a deceased daughter. The devise under consideration in that case was:

"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 testator was survived by five children and by three children of a deceased daughter, which deceased daughter had been previously named in the will. We said:

"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...