Gilmore v. Jenkins

• Decision Date: 15 February 1906
• Citation: 106 N.W. 193,129 Iowa 686
• Parties: GILMORE ET AL. v. JENKINS ET AL.
• Court: Iowa Supreme Court

129 Iowa 686

106 N.W. 193

GILMORE ET AL.

v.JENKINS ET AL.

Supreme Court of Iowa.

Feb. 15, 1906.

Appeal from District Court, Dallas County; Edmund Nichols, Judge.

Suit in equity to quiet title to certain real estate in plaintiffs and defendants Emma Deardorff and Ethel Elva Jenkins, against defendants Joseph Henry Jenkins, Edward Franklin Jenkins, and the wife of Joseph H. Jenkins. The defendant Joseph H. Jenkins denied the ownership of plaintiffs and his codefendants, and pleaded that he was the owner of four thirty-fifths of said real estate. Plaintiffs in reply averred that Joseph H. Jenkins had received by way of advancement from his father all that he was entitled to of his estate; that defendant Edward Jenkins had also received all that he was entitled to; and that the father willed the property in question to these plaintiffs and some of the defendants. The case went to trial on these issues, resulting in a decree establishing title in accord with plaintiffs' claims. Defendant Joseph H. Jenkins appeals. Reversed.White & Clarke, for appellant.

Cardell & Fahey, for appellees Gilmore and others.

E. R. Sayles, for appellees Deardorff and others.

DEEMER, J.

Martin Jenkins died November 15, 1899, seised of the N. W. fractional 1/4 of section 30 in township 80 in Dallas county, Iowa. He also left some personal property, which will be hereinafter referred to. He left surviving his wife, Nancy, and seven children, to wit, Joseph H., Edward F., Ethel Elva, and Vinta Blanche Jenkins, and Ada M. Gilmore, Emma F. Deardorff, and Lillie Ann Tilden. On the 15th day of February, 1897, he had executed a will, which after his death was duly admitted to probate. This will reads as follows:

“First. It is my will that my wife Nancy Jenkins shall receive her maintenance from my estate during her lifetime, or so long as she shall remain my widow. In case she remarries after my death, she shall receive the sum of five dollars.

Second. I give and bequeath to my son Joseph Henry Jenkins the sum of five dollars.

Third. I give to my son Edward Franklin Jenkins the sum of five dollars.

Fourth. To my five daughters, viz., Ada Melissa Gilmore, Emma Florence Deardorff, Lillie Ann Tilden, Ethel Elva Jenkins and Vinta Blanche Jenkins, I give and bequeath the undivided one fifth of the west half of the northwest fractional quarter, section thirty, township eighty, range twenty-nine west 5th P. M., Iowa, and all my personal property of whatsoever kind that I may die seised of after all my legal debts are paid and discharged, including my last sickness and funeral expenses. In case either or any of them should die prior to my death, then her share to revert to her heirs, or should she die without issue, then her share shall revert to the remaining daughters. I furthermore request that the real estate described shall not be sold to make a division of the same, except it be by the consent of the majority of my five daughters or their legal heirs.

Fifth. I hereby appoint A. J. Hemphill, of Panora, Iowa, executor of this my last will and testament, hereby revoking all former wills by me made.”

After testator's death, the heirs and devisees other than Edward F. conveyed to said Edward the east 80 acres of the fractional tract, pursuant to an alleged purpose on the part of the deceased to convey the same to him before his death. It is now claimed that the devisees named in the fourth paragraph of the will took the west half of the fractional quarter absolutely; that defendant and appellant Joseph H. Jenkins is entitled to nothing under the will save the $5 mentioned in the second paragraph; and that, no matter what the construction of the will, he has had all that he is entitled to of his father's estate by way of advancements during the life of the testator. On the other hand, Joseph H. Jenkins claims that he had no advancements, that the will of his father gave appellees but one-fifth of the real estate therein described; and that he is entitled to four thirty-fifths thereof. He also contends that the doctrine of advancements does not apply, except in cases where there is no will, and will not be considered, even in cases of partial intestacy. We are of opinion that under our statute, which provides for bringing advancements into hotchpot when given by an “intestate” to his heir, no property so given can be taken into account in the distribution of an estate, where the ancestor leaves a will, although he may not have disposed of all of his property thereby. The general rule, both in England and in this country, is that the law of advancements, in the absence of statute, does not apply unless the ancestor dies wholly intestate. Greene's Ex'r v. Spear, 37 Ala. 532;Marshall v. Rench, 3 Del. Ch. 239;Huggins v. Huggins, 71 Ga. 66;Manning v. Thruston, 59 Md. 218;Turpin v. Turpin, 88 Mo. 337;Thompson v. Carmichael, 3 Sandf. Ch. (N. Y.) 120;Needles v. Needles, 7 Ohio St. 435, 70 Am. Dec. 85; and cases cited in volume 49, Cent. Dig. p. 2963. The reason for this rule is obvious. If it were otherwise, it would be impossible for one to make a will which, in cases of partial intestacy, would give to one heir more than to another. The testator is conclusively presumed to have considered the advancements and the bequests made in the will collectively, and to have made distribution as he intended to make it. He need not treat his heirs or devisees as standing on an equal footing, and may give to one more than to another, or may equalize the matter, as he sees fit in his will. The doctrine of advancements rests upon the presumed desire of an ancestor to equalize his estate among his heirs. When he makes his will, he expresses his intention in this respect, and his desires should be followed.

Unless appellees, the devisees under the fourth paragraph of the will, take all of the land therein described, then partial intestacy results, as there was no residuary clause, and appellant Joseph H. is entitled to his share of the remainder; for we must assume that, in giving more to these devisees than he did to Joseph, he had equalized the matter between them as he thought it should be done, and there is no room for any presumption in the matter. So that the entire case turns upon the construction to be placed upon this fourth division of the will. If it gave to the devisees therein named the whole of the land, and not one-fifth thereof, the decree of the trial court is correct. But if it gave them but one-fifth, then they take the remaining four-fifths with their brothers; each being entitled to four thirty-fifths of the land, because it was not devised to any one. Taking this fourth paragraph of the will alone, it is clear that the testator devised to his daughters, naming them, the undivided one-fifth of the land therein described. Ordinarily such a gift would be considered as made to a class, and, in the event of the death of any one of them, the survivor or survivors would take the whole. Swallow v. Swallow, 166 Mass. 241, 44 N. E. 132. And if this were all there is of the will we should have no difficulty in saying that the gift to the class as a whole was of but one-fifth of the entire estate. But the testator removed this idea of survivorship by providing that, in case of death of any of them, her share should go to her heirs, if she had any, and, if not, then to the remaining daughters. This is a clear...