Hahn v. Dunn

• Decision Date: 13 January 1931
• Docket Number: 40400
• Citation: 234 N.W. 247,211 Iowa 678
• Parties: H. F. HAHN et al., Appellants, v. JOSEPH DUNN et al., Appellees
• Court: Iowa Supreme Court

234 N.W. 247

211 Iowa 678

H. F. HAHN et al., Appellants, v. JOSEPH DUNN et al., Appellees

No. 40400

Supreme Court of Iowa, Des Moines

January 13, 1931

Appeal from Linn District Court.--F. O. ELLISON, Judge.

This was a proceeding in equity, brought by the plaintiffs to first, quiet in themselves the title to certain real estate and second, partition the same. Such realty was formerly owned by Clarence E. Hahn, deceased, and by him, through a last will and testament, devised to his wife, Katherine M Hahn, who later died. The relief was denied by the district court, and plaintiffs appeal.

Reversed.

E. A. Johnson, for appellants.

Rhinehart & McLaughlin, for appellees.

KINDIG, J. FAVILLE, C. J., and EVANS, STEVENS, DE GRAFF, ALBERT, MORLING, WAGNER, and GRIMM, JJ., concur.

OPINION

KINDIG, J.

On August 2, 1928, Clarence E. Hahn executed his last will and testament. So far as material, that instrument contained the following provisions:

"* * * I, Clarence E. Hahn, * * * direct:

"First: That all my just debts, including the expenses of my last sickness and funeral expenses, be paid out of my estate.

"Second: All the rest, residue and remainder of my property, personal, real or mixed, and of whatsoever kind and nature, I will and bequeath to my beloved wife, Katherine M. Hahn, absolutely and in fee simple."

Clarence E. Hahn, the aforesaid testator, died in Linn County December 30, 1928, survived by his wife, the above-named devisee, Katherine M. Hahn. Within three days thereafter, the devisee died, on January 2, 1929. No children survived the testator, Clarence E. Hahn. His will, previously set forth, was duly admitted to probate in the district court of Linn County. Jacob Manstrup and Sam James were appointed administrators with the will annexed. Katherine M. Hahn, the surviving wife of the testator, during her lifetime did nothing affirmatively indicating that she accepted the terms of her husband's will. At the time of his death, the testator owned 80 acres of land in Linn County and certain personal property. The plaintiff-appellants H. F. Hahn and Philip Hahn are brothers of the testator, Clarence E. Hahn, and the plaintiff-appellant Ella Hoodmacher is his sister.

Like her husband before her, Katherine M. Hahn died testate. In her will, the defendants and appellees herein were named devisees and legatees. Hence, the contest here is between the husband's relatives, on the one hand, and the devisees and legatees under the wife's will, on the other.

Appellants contend that the wife, Katherine M. Hahn, did not elect to take the devise under her husband's will, and therefore she received only her statutory one-third distributive share in the said real estate. Furthermore, appellants claim that they are entitled to the other two thirds of such property. To obtain that two-thirds interest, the present proceedings were instituted by the appellants, wherein they ask that their title in and to the property be quieted in themselves, and that the land be partitioned accordingly. An attack was made upon appellants' petition filed for such relief, by a motion to dismiss. Appellees, under their motion to dismiss, insist that all the husband's property through the will was devised and bequeathed to the wife, and therefore the necessity of electing did not arise. Continuing their contention at this point, appellees argue that the provisions of the will must be inconsistent with the wife's statutory right, before she is required to elect between her distributive share and the devise in the will, and, there being no such incompatibility in the Clarence E. Hahn will, his wife need not elect. That, in a general way, suggests the conflicting views expressed by the litigants.

A solution of the problem thus presented will be found in the statutory provisions applicable, as interpreted by this court. Those statutory provisions, so far as material, are contained in the following sections of the 1927 Code:

"12006. The survivor's [surviving spouse's] share cannot be affected by any will of the spouse unless consent thereto is given as hereinafter provided.

"12007. Where a voluntary election to take or refuse to take under a will has not been filed by a surviving spouse within sixty days from the date when the will of a decedent has been admitted to probate, it shall be the duty of the executor appointed to administer the will of such decedent in this state, to cause to be served, in the manner required for service of original notice, upon the surviving spouse, a notice, in writing, advising such surviving spouse that the will of such decedent has been admitted to probate, stating the name of the court and the date when the will was admitted to probate, and requiring that such spouse, within six months after the completed service of such notice, elect whether he or she shall take or refuse to take under the provisions of the will of such decedent, and that such election may be made in open court or by writing filed in such court.

"12008. Said election, when made, shall be entered on the proper records of the court.

"12010. In case such surviving spouse does not make such election within six months from the date of the completed service of such notice, or if such surviving spouse shall be the executor of the will and fails, within six months after the will is admitted to probate, to file with the clerk of the court an election to refuse to take under the provisions of the will of the deceased, it shall be conclusively presumed that such survivor consents to the provisions of the will and elects to take thereunder; unless within such period of six months an affidavit should be filed setting forth that such surviving spouse is mentally incapable of making such election."

Following the foregoing are provisions enabling those representing a mentally incapable spouse to make the necessary election for the incompetent.

When the gift provided by the husband's will is in lieu of her distributive share, the wife must elect to take under the will, or the law decides that she retains her distributive share instead of the benefits provided for her in the will. Ross v. Alleghany Theological Seminary, 204 Iowa 648, 215 N.W. 710; In re Estate of Culbertson, 204 Iowa 473, 215 N.W. 761; Peckenschneider v. Schnede, 210 Iowa 656, 227 N.W. 335. The Peckenschneider case is important in this discussion. Hence, an elaborate quotation is made therefrom. We, among other things, there said:

"In the case of In re Estate of Culbertson, 204 Iowa 473, 215 N.W. 761, filed October 18, 1927, the statutes of the state of Iowa pertaining to survivor's share and the effect thereon of wills, is historically and exhaustively treated. It would serve no good purpose to attempt to add to that discussion. * * * There has been no change on the subject in the statutory law of Iowa since the filing of said decision. It is determinative of this case. In the absence of a consent by the surviving spouse, or in the absence of the proceeding specified in Sections 12007 and 12010, the surviving spouse takes her survivor's share, and not under the will. While in the case at bar, the surviving spouse was named as one of the executors, she died before the will was admitted to probate, and consequently never became one of the executors. She did nothing towards accepting or renouncing under the will. We have solely the question whether, under such circumstances, she took the survivor's share, under the law, or a life estate, under the will. She might have elected to take under the will. If she had lived 60 days from the date when the will of the decedent was admitted to probate, it would have been the duty of the executors to serve notice upon the surviving spouse, as provided in Section 12007. Under such a notice, she would have been required to make her election within six months after the completed service of the notice; and under the provisions of Section 12010, if she failed within said six-months period of time to make her election under the will, it would become conclusively presumed that she consented to the provisions of the will, and elected to take thereunder, unless an affidavit should be filed, setting forth that such surviving spouse was mentally incapable of making such election. In that event, under the provisions of Section 12011, the court made the election for her. The testator in this case died December 31, 1926. The surviving spouse died on January 10, 1927, and the will of the testator was admitted to probate on February 28, 1927. The surviving spouse died without having filed an election, in writing, to take or reject the provisions of the will, and no notice requiring her to so elect was ever served on her. She was not appointed an executor of the will. There is a total absence of showing that she did anything that could be construed to mean an acceptance under the terms of the will. Therefore, she must be held to have died possessed of her survivor's share [statutory distributive share] in the estate of her deceased husband."

For all material purposes, the discussion in the Peckenschneider case applies with equal force and effect to the point now being considered in the case at bar. Said Peckenschneider decision, therefore, controls the proposition now under consideration.

An election may be made in writing or in open court, under Section 12007, above quoted; but that method of making an election, under some circumstances, is not exclusive. At least, if the foregoing statutory notice required by Section 12007 is not served as above authorized, the election may be evidenced by words or acts outside of court. Concerning this, we used the following language in In re Estate of Culbertson (204 Iowa 473, 215 N.W. 761), supra, on page 485:

"A...