Furenes v. Severtson
| Decision Date | 20 May 1897 |
| Citation | 71 N.W. 196,102 Iowa 322 |
| Parties | OLE STENSON FURENES, STINE STENSON FURENES, et al., v. JOHN SEVERTSON, et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Story District Court.--HON. S. M. WEAVER, Judge.
SUIT in equity to partition real estate. The lower court sustained a demurrer to the defendants' answer, and they appeal.
Affirmed.
M. P Webb and Read & Read for appellants.
E. H Addison, W. G. Harvison, and D. J. Vinje for appellees.
Thor Olson and his wife, who were natives of Norway, although citizens of the United States, resided, prior to their death in Story county. Olson was seized of the lands which are the subject of controversy, and before his death executed a will in which he devised his real estate to his wife for life, remainder over, one-half to his heirs and one-half to the heirs of his wife. The widow elected to accept the provisions of the will, and entered into the possession of the real estate, which she held until the date of her death, August 29, 1892. These parties had no children. The plaintiffs are the collateral heirs of Thor Olson, and are each and all non-resident aliens. The defendants are the collateral heirs of the wife, and they, or some of them, are residents and citizens of the United States. After the death of Olson and his wife, the defendants had the lands, of which their ancestors died seized, partitioned among themselves, but plaintiffs were not made parties to the suit. The contention of appellants under these facts is that plaintiffs cannot inherit from Thor Olson on account of their alienage, because of the provisions of chapter 85, Acts Twenty-second General Assembly, and that, as they could not inherit from him, they are not his heirs, and therefore cannot take under the will. The act of the general assembly referred to, so far as material, is as follows: Section 1: "Non-resident aliens * * * are hereby prohibited from acquiring title to or taking or holding any lands or real estate in this state by descent, devise, purchase, or otherwise only as hereinafter provided. * * *" Section 2: "Any non-resident alien may acquire and hold real property to the extent of 320 acres * * * provided that within five years from the date of purchase of said property the same is placed in the actual possession of a relative of such purchaser; the occupant being related to such owner within the third degree of kindred; * * * and further provided that such occupant become a naturalized citizen within ten years from the purchase of said property as aforesaid." Now, in recognition of the familiar doctrine that one who takes by devise is a purchaser, we have held that a non-resident alien may take by devise under the exception contained in this statute. Bennett v. Hibbert, 88 Iowa 154 (55 N.W. 93). So that the only question which remains on this branch of the case, is, do the plaintiffs take by descent? The solution of this inquiry involves a construction of the words "my heirs," as used by Thor Olson in his will. The canons of construction with reference to such instruments are well understood, and the cardinal one is that the intention of the testator is the first great object of inquiry. Turning to the will, it is evident that the testator did not intend to devise all this real estate to the heirs of his wife. This he carefully guarded against by saying they should receive but one-half. And yet appellants say the will should be so construed as to give them all. Another tenet is that a will must be read in such a way as to give effect to every portion of the instrument unless there arises some invincible repugnance, or unless some portion of it is absolutely unintelligible. The testator manifestly intended some class of persons by the use of the words "my heirs," and the persons so intended were other than the heirs of his wife. This is perfectly patent. Now, it is well known that persons unskilled...
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