Gilbert v. Wenzel

• Decision Date: 16 October 1956
• Docket Number: No. 48975,48975
• Parties: Irene GILBERT, Edna Duff, Sylva Mobley, Tessie Greene, Otho Downing, Ulva Miller, Jennie Armstrong, Clint Downing, Clare Downing, John R. Downing, Tommie Downing, Dale Downing, LaVerne Downing, Marvin Downing, Wayne Downing, Carson Downing, Helen Jean Bonker, Kenneth Downing, LaVonne Smith, Willis Mobley, and Gladys Hanes, Appellees, v. Elsie M. WENZEL and Otto Wenzel, Appellants.
• Court: Iowa Supreme Court

Page 793

78 N.W.2d 793

247 Iowa 1279

Irene GILBERT, Edna Duff, Sylva Mobley, Tessie Greene, Otho Downing, Ulva Miller, Jennie Armstrong, Clint Downing, Clare Downing, John R. Downing, Tommie Downing, Dale Downing, LaVerne Downing, Marvin Downing, Wayne Downing, Carson Downing, Helen Jean Bonker, Kenneth Downing, LaVonne Smith, Willis Mobley, and Gladys Hanes, Appellees, v. Elsie M. WENZEL and Otto Wenzel, Appellants.

No. 48975.

Supreme Court of Iowa.

Oct. 16, 1956.

James B. Smith, Perry, for appellants.

H. E. Newton, Stuart, for appellees.

GARFIELD, Justice.

The question presented is whether testamentary beneficiaries took interests in testator's realty per capita or per stirpes. The district court held a per capita distribution among testator's grandchildren was intended. We affirm the decision.

Josiah Early died testate February 28, 1917. Paragraph 2 of his will, made March 13, 1915, when he was 79, devised a life estate in all his property to his wife Sarah A. and his daughters Hannah Elizabeth and Flora Caroline 'so long as they or either or them survive me. * * * if either of the parties herein mentioned should marry * * * she shall relinquish said life interest * * *.'

The vital provision is paragraph 3: 'At the death of the life tenants * * * I hereby direct that the remainder shall be divided equally between the heirs of C. A. Early and Alice Floretta Downing, and Hannah Elizabeth Early, should she marry and forfeit her life interest therein, or their heirs.' The only other provisions are for payment of debts and expenses in paragraph 1 and nomination of Hannah Elizabeth as executrix in paragraph 4.

C. A. Early was a son and Alice Floretta Downing a daughter of testator. They survived him together with his widow and daughters Hannah Elizabeth and Flora Caroline, both of whom never married and of course had no children. The son C. A. Early had one child, Elsie M. Wenzel, who with her husband Otto are defendants. (We disregard the fact Otto is a defendant.) The daughter Alice Floretta Downing had ten children ranging in age from 11 to 33 when the will was made. Defendant Elsie was then 20.

Incidentally, since Hannah Elizabeth never married she did not 'relinquish' or 'forfeit' her life interest. Nevertheless we regard the provision of paragraph 3 which names this daughter as of some significance upon this appeal.

Plaintiffs are the six living children, and children of the four deceased children, of testator's daughter Alice Floretta Downing. The three life tenants named in paragraph 2 having died, plaintiffs brought this action for partition of the realty left by testator. They claim the ten children of Alice Floretta Downing and defendant-daughter of C. A. Early took per capita and not per stirpes--each a 1/11 interest. Defendant, on the other hand, contends distribution should be per stirpes--she owns a half interest and plaintiffs the remaining half. The district court held the will provided for a per capita distribution among the grandchildren. Defendant has appealed.

A division per capita means by a number of individuals equally or share and share alike. A division per stirpes is where those of more remote kinship to decedent take by right of representation. Proctor v. Lacy, 263 Mass. 1, 160 N.E. 441, 444, and citations. See also Central Hanover Bank & Trust Co. v. Helme, 121 N.J.Eq. 406, 190 A. 53, 63; 3 Page on Wills, Lifetime Ed., section 1070; 70 C.J.S., page 448.

The authorities the determining factor in ascertaining whether beneficiaries under a will take per capita or per stirpes is the intention of the testator. This is to be reached from the language used as applied to the surrounding circumstances and the conditions present in testator's mind when the will was made. Wright v. Copeland, 241 Iowa 447, 455, 41 N.W.2d 102, 107, and citations; Jones v. Lewis, 70 Ohio App. 17, 44 N.E.2d 735, 743; Annotation, 13 A.L.R.2d 1023, 1028. See also Clapper v. Clapper, 246 Iowa 899, 900, 70 N.W.2d 145, 146; Miller v. Smith, 179 Or. 214, 170 P.2d 583, 584; 3 Page on Wills, Lifetime Ed., section 1072; 57 Am.Jur., Wills, section 1291.

Paragraph 3 of the will provides that at the death of the life tenants the remainder shall be divided equally between the heirs of his married son and daughter and, if the daughter Hannah Elizabeth should marry, her heirs. Technically a person's heirs are those upon whom the law casts the estate immediately on the death of the ancestor. In re Estate of Austin, 236 Iowa 945, 947, 20 N.W.2d 445, 447, 162 A.L.R. 709, 712, and citations; Lincoln Joint Stock Land Bank of Lincoln, Neb. v. Mitchell, 239 Iowa 995, 1000, 33 N.W.2d 388, 391. Strictly speaking a living person cannot have heirs because they cannot be ascertained until he dies. Citations last above, also Westcott v. Meeker, 144 Iowa 311, 324, 122 N.W. 964, 29 L.R.A.,N.S., 947; Kalbach v. Clark, 133 Iowa 215, 222, 110 N.W. 599, 12 L.R.A.,N.S., 801, 12 Ann.Cas. 647.

We have repeatedly held under varying circumstances the term 'heirs' is not always used in its strict legal sense but its meaning in a particular instance is determined from the will and surrounding circumstances. Wright v. Copeland, supra, 241 Iowa 447, 453, 41 N.W.2d 102, 106, and citations; In re Estate of Austin, supra.

We think it clear testator did not use the term 'heirs' of his married son and daughter in its technical sense but in the sense of their children, testator's grandchildren. As we shall point out, in at least two other respects the will does not draw fine distinctions between words. Testator's children and grandchildren were all living when the will was made. His married son and daughter were of course the only children of testator who in turn had children of their own although his unmarried daughters would, at their death, have heirs in the strict legal sense. The will directs an equal division between the beneficiaries at the death of the life tenants even though the married son or daughter should then be living.

This last fact not only indicates 'heirs' was not used in its technical sense but tends to establish testator was not thinking of the takers as representing their respective parents and lessens the probability he intended a per stirpes distribution. Restatement, Property, section 301, Comment f, page 1646.

In Kalbach v. Clark, supra, 133 Iowa 215, 216, 222, 110 N.W. 599, 600, 12 L.R.A.,N.S., 801, 12 Ann.Cas. 647, the will, quite similar to this one, provided: "At her (life tenant's) death I wish the principal to be equally divided among the heirs of my four children [naming them]." In holding 'heirs' was used as meaning 'children' we said: 'Testatrix evidently used the words 'the heirs of the four children' as the equivalent of 'children,' for she directed that distribution be made among them upon the death of the life tenant. The words are not used to denote succession, but to describe the legatees who were to take under the will, and they should not be given their strict legal meaning, for this was evidently not the testator's intention. [Citations.]'

The term 'heirs' in a testamentary gift to the heirs of two or more persons is usually used in the sense of 'children' or 'descendants.' Annotations, 16 A.L.R. 15, 79, 13 A.L.R.2d 1023, 1057. See in this connection Rogers v. Smith, 145 Ga. 234, 88 S.E. 963, 964; McFatridge v. Holtzclaw, 94 Ky. 352, 22 S.W. 439; Jones v. Lewis, supra, 70 Ohio App. 17, 44 N.E.2d 735, 740-741; In re Love's Estate, 362 Pa. 105, 66 A.2d 238; Driskill v. Carwile, 145 Va. 116, 133 S.E. 773, citing Kalbach v. Clark, supra, 133 Iowa 215, 110 N.W. 599, with approval and quoting from it at length.

Since testator apparently used the term 'heirs' of his married son and daughter in the sense of their children we have no difficulty in agreeing with the trial court a per capita distribution among them was intended. The gift is direct to individuals, not by right of representation. The words used describe those who are to take. The will provides for an equal division between the beneficiaries, not for an equal division between the married son and daughter and then a division of each half to their respective children. The beneficiaries, grandchildren, all stood in equal degree of kinship to testator. See Kalbach v. Clark, supra, 133 Iowa 215, 223, 110 N.W. 599. See also In re Estate of Whittaker, 175 Iowa 718, 157 N.W. 135.

We have held: '* * * when an estate is devised to be divided equally between certain persons, whether specifically named, or designated by more general terms, as the children of heirs of certain persons, the language imports the taking of an equal share by each legatee, in the absence of other provisions showing a contrary intention. In other words, they take per capita, and not per stirpes.' Kling v. Schnellbecker, 107 Iowa 636, 638, 78 N.W. 673.

The annotation 16 A.L.R. 15, 61 et seq., cites numerous decisions for the proposition that under a bequest to the children of several persons the children take per capita and not per stirpes, in the absence of words indicating a different intention. The same rule applies to a bequest to 'heirs' of two or more persons at least where, as here, some term implying equality of distribution is used. Id., page 79. See also later annotations 78 A.L.R. 1385, 1404, 1407; 126 A.L.R. 157, 175; 13 A.L.R.2d 1023, 1054-1055, 1057.

Appellants argue use of the word 'between' in paragraph 3 indicates a division per stirpes was intended. It is true 'between,' strictly speaking, imports a division between two individuals or groups and, standing alone, is some evidence a distribution per stirpes was intended. 'Among,' indicating a division between more than two, should have been used here. However, courts have repeatedly recognized that 'between' is frequently used in the sense of 'among.' Wright v. Copeland, supra, 241 Iowa 447, 454-455, 41 N.W.2d 102, 106-107, and citations; McIntire v. McIntire, 192 U.S. 116, 121, 24 S.Ct. 196, 48 L.Ed....