Elberts v. Elberts

• Decision Date: 12 April 1913
• Citation: 141 N.W. 57,159 Iowa 332
• Parties: ELBERTS v. ELBERTS ET AL.
• Court: Iowa Supreme Court

159 Iowa 332

141 N.W. 57

ELBERTS

v.ELBERTS ET AL.

Supreme Court of Iowa.

April 12, 1913.

Appeal from District Court, Sioux County; David Mould, Judge.

Action for partition of real estate. Defendant's demurrer to petition overruled. Defendants appeal. Reversed.W. C. Leonard, of Rock Valley, and Gerrit Klay, of Orange City, for appellants.

Van Oosterhout & Hospers, of Orange City, for appellee.

GAYNOR, J.

It appears from the record in this cause that on the 23d day of April, 1909, Joseph Elberts died seised in fee of the following described real estate: N. W. 1/4 and the N. 1/2 of the S. W. 1/4 of section 21, township 97, range 47, in Sioux county, Iowa. That at the time of his death he left surviving him three children, Aloysius Joseph Elberts, Josephine Anna Marie Elberts, and Ludwig Joseph Johannes Elberts. That he left a will, the material portions of which are as follows:

“Par. 3. I give, and devise to my said three children, the following real estate, to wit (being the real estate hereinbefore described); to be divided equally between them, share and share alike, they to have and to hold the aforesaid real estate to themselves and to their heirs and assigns forever.

Par. 4. I give, bequeath and devise all the rest and residue and remainder of my personal estate, or real property, wherever situated or located, to my said three children, to be equally divided between them, share and share alike.

Par. 5. I hereby direct and order that my farm, on which I am now living, being the real estate hereinbefore described, and bequeath, to be held intact and not disposed of, sold or divided until my youngest son becomes of the age of twenty-one years, or in case of his death before that age, said farm shall be kept intact, unsold and undivided, until October 7, 1919.

And I hereby direct and order that my estate be not finally closed until the 7th day of October, 1919, and that my executors have full charge of my said real estate, renting the same, collecting the rents, paying the taxes, etc., giving to my said executors exclusive jurisdiction to fully and completely manage said real estate, until October of the year 1919, the same as I would if I were still living, and I hereby direct that my said executors, after paying the necessary expenses and charges in caring for said farm, to divide the net proceeds each year equally between my said three children. However, I direct my executors to maintain a home on the said farm for my children, by hiring a housekeeper, or otherwise, for them, if the same can be done to the best interests of my said children. Otherwise to manage, rent or so handle the said farm as will be for the best interest of my estate and my children.

I hereby nominate E. C. Suter and E. E. Coyer executors of this will.”

Said will was duly probated, and the executors so nominated were by the court duly appointed executors of the will, and qualified and entered upon the discharge of their duties, as such, under the will.

On the 21st day of December, 1911, this action was commenced by Aloysius Joseph Elberts, one of the devisees in the will, against the other devisees and the executors so appointed by the court, asking partition of the real estate so devised, and that, if it cannot be equitably divided, the same be sold and the proceeds divided. To the petition of the plaintiff a demurrer was interposed by the defendants on the ground that it affirmatively appears that the plaintiff is not entitled to the relief demanded. This demurrer was by the court overruled, and from this ruling the case comes on appeal to this court.

A proper determination of this case and the controversy arising herein involves a construction of the will hereinbefore set out and a determination of the effect of the will on the rights of the parties in and to the real estate therein devised, as the same existed at the time this action was commenced. The first duty, therefore, is to determine, from the terms of the will itself, the intent of the testator and to carry the same into effect, unless, under well-recognized canons of construction, there be some insuperable objection thereto.

[1] The will should be construed as a whole, and, of possible, effect be given to each and every provision thereof, and to avoid, if possible, any construction or interpretation which would defeat the manifest purpose and intent of the testator, as expressed in the will.

[2] This all courts endeavor to do, but there are, however, some fundamental rules of construction so well settled and so long recognized that, applying them to the language of the will, it sometimes becomes impossible for the court to recognize and enforce all the provisions of the will, and this is especially true when the same are indefinite, uncertain, or repugnant to other parts of the will, and if enforced destroy or render ineffectual the first clearly expressed intent and purpose of the testator, made, apparently, without limitation and without a thought or purpose of limitation. When this appears, the courts, having regard for the recognized canons of construction, have held these subsequent provisions to be repugnant to the other and void. Where the testator, in the first clauses of his will, devises a fee to a certain person in language unmistakable and unequivocal, in terms that suggest no limitation upon the grant, and in a subsequent portion of his will makes provision inconsistent with the first grant, which, if enforced, destroys the manifest purpose expressed in...