Freier v. Longnecker

• Decision Date: 14 November 1939
• Docket Number: 44949.
• Citation: 288 N.W. 444,227 Iowa 366
• Parties: FREIER et al. v. LONGNECKER et al. (PENN MUT. LIFE INS. CO., Intervenor).
• Court: Iowa Supreme Court

288 N.W. 444

227 Iowa 366

FREIER et al. v. LONGNECKER et al. (PENN MUT. LIFE INS. CO., Intervenor).

No. 44949.

Supreme Court of Iowa.

November 14, 1939

Appeal from District Court, Woodbury County; A. O. Wakefield, Judge.

Suit in equity in which plaintiffs sought to have ascertained and subjected to the satisfaction of their judgment the alleged interests of one of the judgment debtors in the assets of a decedent's estate. From a judgment dismissing their petition, plaintiffs appealed.

Affirmed.

Shull & Stilwill, Carlos W. Goltz, and C. N. Jepson, all of Sioux City, for appellants.

Kenneth T. Wilson and Francis S. Wilson, both of Sioux City for appellees.

Milchrist & Marshall, of Sioux City, for intervenor.

RICHARDS, Justice.

We will first relate the underlying factual matters that are set out in plaintiffs' petition. In August, 1934, Mary Jane Purslow Miller died testate. On September 21, 1934, her will bearing date January 9, 1934, was allowed to probate in the Woodbury District Court and defendant Genevieve Longnecker, daughter of testatrix, was appointed as executrix of the estate. Plaintiffs set out this will as a part of their petition. The portion of the will that is material to the cause of action plaintiffs seek to allege is in the following words:

" II. I hereby give, devise and bequeath to my daughter, Genevieve Longnecker, all of my property of every character and description, wherever situated, of which I may die seized or possessed, in trust only, to invest and keep the same invested with the power to change and vary the investments from time to time by selling any part and reinvesting the proceeds, and with the additional power to mortgage, or renew the existing mortgage upon, any piece of property belonging to the trust estate, without being under the necessity of applying to a court for authority to sell or mortgage or renew a mortgage, and after paying all taxes, charges and expenses in connection with the trust property, and with the execution of the trust, including such compensation, not exceeding $10,000.00 per annum in the aggregate, as the Court shall from time to time allow for her services and for such additional services as she may deem necessary, and to invest and reinvest the net income and add the same to the trust estate, and she shall so continue to hold, manage and conserve the trust estate until it is finally disposed of as herein provided.

I have two grandchildren; namely; Larrimore Purslow Longnecker and Jana Jeanette Longnecker, son and daughter of said Genevieve Longnecker and her husband L. B. Longnecker. As each of the said grandchildren attains the age of forty years, the trustee shall assign and transfer to him or her an undivided one-fourth of the trust estate. If, and when, the said Genevieve Longnecker shall pay or discharge or cause to be paid or discharged, or in the event the same shall become barred, obligations owing by her to judgment creditors in Los Angeles, County, California, present or future, including the judgment of Albert K. Isham, and the judgment of E. Paul Freier, and judgment creditors, if any, in Woodbury County, Iowa, present or future, she shall for the remainder of her life be entitled to the income from one-half the trust estate, the remainder of said one-half, subject to the foregoing, to become the property of the said grandchildren, share and share alike. Upon the decease of the said Genevieve Longnecker, or in the event she fails to pay or discharge, or cause to be discharged, each and all of the judgments against her, or in the event they do not become barred, then the entire trust property shall go to the said grandchildren, share and share alike, as each attains the age of forty years.

It is my intention in thus making provision for my daughter, Genevieve Longnecker, and the devise is made to her upon the condition, that no interest shall so vest in her that it shall become liable in any way for the claims of judgment creditors.

In the event that either of my said grandchildren shall die without issue, the portion of my estate which would otherwise go to the one deceased, shall go to the survivor. If either shall die with issue, his or her share shall go to such issue, share and share alike, but in no event shall it vest free from the trust prior to attaining the age of twenty-one years.

III.

I hereby bequeath to Mary Listman the sum of $100.00 per month, the same to be paid to her monthly out of the trust estate, as long as she lives."

These further matters are alleged in the petition. In November 1933, plaintiffs recovered a judgment in one of the courts of California against Genevieve Longnecker et al. Bringing an action at law thereon in the Woodbury District Court plaintiffs recovered a judgment against the same parties including Genevieve Longnecker on September 29, 1936. The instant suit in equity was brought on August 5, 1938. In addition to what has already been stated the petition in the instant suit contained a description of the real property of which the testatrix died seized. The prayer of the petition was that the interest of Genevieve Longnecker in the real estate so described be ascertained and subjected to the satisfaction of the plaintiffs' Woodbury District Court judgment. With respect to Genevieve Longnecker having interests in said real estate, the petition alleged that it was the evident intent of testatrix by the terms of her will to place the legal title and entire beneficial interest in said estate in Genevieve Longnecker. In another paragraph of the petition it is alleged that " Genevieve Longnecker could not by the said instrument lawfully become the trustee and...