Funk v. Grulke

• Decision Date: 03 May 1927
• Docket Number: 37958
• Citation: 213 N.W. 608,204 Iowa 314
• Parties: M. H. FUNK, Appellant, v. FRANK J. GRULKE et al., Appellees. B. F. FUNK, Appellant, v. FRANK J. GRULKE et al., Appellees
• Court: Iowa Supreme Court

213 N.W. 608

204 Iowa 314

M. H. FUNK, Appellant, v. FRANK J. GRULKE et al., Appellees.

B. F. FUNK, Appellant, v. FRANK J. GRULKE et al., Appellees

No. 37958

Supreme Court of Iowa, Des Moines

May 3, 1927

REHEARING DENIED OCTOBER 1, 1927.

Appeal from Cass District Court.--J. S. DEWELL, Judge.

The plaintiff, having garnished, under a judgment, the executors of the estate of Albert F. Grulke, filed a pleading in the nature of a creditor's bill, whereby he sought to subject to the payment of his judgment the alleged interest of Carrie Ratzlaff, the judgment debtor, in said estate. The judgment debtor was a legatee by the original will, and took thereunder one sixth of the estate. The controversy involves the consideration of a later codicil and of the later renunciation by Carrie Ratzlaff of the provisions of the will in her behalf. Was the subsequent renunciation by Carrie Ratzlaff legally effective, as against her creditors? The district court dismissed the petition, and the plaintiff appeals.

Affirmed.

E. M Willard and Dalton & Knop, for appellants.

Addison G. Kistle and G. C. Wyland, for appellees.

EVANS C. J. STEVENS, FAVILLE, VERMILION, MORLING, and KINDIG, JJ., concur.

OPINION

EVANS, C. J.

The will in question was executed in June, 1918. The testator thereby directed his executors to convert his property into money, and to divide the same into six equal parts, and to pay to each of his five surviving children one of such equal parts, and to the child of a deceased daughter, the sixth equal part. One of such devisees was Carrie Ratzlaff, daughter of the testator. In May, 1924, the testator executed the following codicil:

"I give, devise and bequeath unto my sons Oscar and Henry Grulke an undivided one sixth of all my estate, both real and personal, in trust for the following specific uses: Said trustees shall hold invest and manage said property for the benefit of my daughter Carrie Ratzlaff, they shall pay to her, for her maintenance, convenience and comfort from time to time, such sums and amounts as their judgment may deem necessary for such purposes. They may refuse to pay any such sum or amount for any period of years or during her lifetime, if they deem such payments unnecessary. Six months after the death of my said daughter, said trustees shall pay to her legal heirs, per stirpes, all money and property in their possession unexpended under this trust. I direct that said trustees shall buy or sell real estate or any other property and convey title thereto without authority of court, and in the same manner as if said property was their own absolutely."

The first question presented is whether the provisions of the foregoing codicil were to be in lieu of the devise made to Carrie Ratzlaff in the original will. Did the provisions of the codicil supplant the original devise to Carrie? The plaintiff contends for the negative on this question, and the defendants for the affirmative.

It will be noted that the codicil does not in terms purport to be in lieu of any previous devise.

The plaintiff contends for a presumption that the provision of the codicil was intended to be cumulative, in the absence of a contrary declaration; whereas the defendants contend for a presumption against the giving of double portions, in the absence of clear and express language to that effect. The question has its perplexity. In view of our conclusion on the other feature of the case, which will be decisive of the result in any event, we are disposed to pass the question here raised, without decision thereon.

This brings us to the consideration of the purported renunciation. Before any distribution of the estate, and before the conversion of the property into money by the executors. Carrie Ratzlaff filed the following:

"Renunciation and Rejection of Carrie Ratzlaff.

"Comes now Carrie Ratzlaff, a daughter of Albert F. Grulke deceased, and do hereby, by this instrument, definitely and finally renounce and reject any and all bequests, gifts and share in the estate of my father Albert F. Grulke, deceased which I might have under the last will and testament of my said father, Albert F. Grulke, who died on or about the first day of September, A. D. 1924, which will is now on file in the office of the clerk of the district court of Iowa in and for Cass County, and was admitted to probate in the district court of Iowa in and for Cass County on or about the 17th day of October, A. D. 1924, and is recorded in Will Record 5 on page 574, in the office of the clerk of the district court of Case County, Iowa. And I further renounce and reject any and all provisions for my benefit under the said last will and testament above mentioned and referred to and under...