Hambel v. Hambel

• Decision Date: 21 October 1899
• Citation: 80 N.W. 528,109 Iowa 459
• Parties: HAMBEL ET AL. v. HAMBEL ET AL.
• Court: Iowa Supreme Court

109 Iowa 459

80 N.W. 528

HAMBEL ET AL.

v.HAMBEL ET AL.

Supreme Court of Iowa.

Oct. 21, 1899.

On rehearing. For former opinion, see 75 N. W. 673.

Action for the interpretation of the will of James W. Hambel, deceased, and for other relief. A demurrer to the petition was overruled, and, the defendants refusing to plead further, a decree was rendered in favor of the plaintiffs. The defendants appeal. Reversed.

ROBINSON, C. J.

The will in question was made on the 18th day of January, 1890, and the portions material to a determination of the questions presented are as follows: “First. I devise and bequeath to my wife, Lucelia A. Hambel, all my property, both real and personal, of every kind and description, that I may own at my decease. Second. I further direct that at the decease of my said wife all the property then remaining shall be equally divided between my children, except W. O. Hambel, youngest son, that may be living at the time of my decease. Third. I nominate and appoint my wife, Lucelia A. Hambel, my sole executrix, with full power to settle my estate and execute this, my will, with full power to sell and convey all real and personal property of which I may die possessed; and I hereby direct that she shall not be required to give bonds or report to court as executrix. Fourth. I further desire and direct that, in case my said wife shall marry after my decease, then upon said marriage two-thirds of my said property then remaining shall be equally divided between my said children, as directed in second par. herein.” In January, 1896, the testator, then a resident of Marshall county, died, and his widow became the executrix of his estate, pursuant to the terms of his will. He had been twice married, and had three children by each wife. The children by the first wife were the plaintiffs, Melvin D. and Marcus B. Hambel, and W. O. Hambel, mentioned in the will, who died after the will was made, but before the death of his father. The three children by the second marriage are daughters, all of whom, with the husbands of two who are married, are joined with the executrix and the widow as parties defendant. It is contended by the plaintiffs that the will gave to the widow but a life estate in the property of the decedent, and by the defendants that the will gave to her the unqualified and absolute title to the property. The districtcourt adjudged that the widow was entitled to a free and unlimited control, management, and use of the estate of the decedent during her lifetime, with full power to use, control, and dispose of it, and of the income therefrom, “for her personal use, comfort, benefit, pleasure, support, and maintenance,” provided she should remain unmarried; and that at her death each of the children of the deceased who survived him should take an undivided one-fifth of the property of the estate then remaining; and that in case of the marriage of the widow each of said children should receive an undivided one-fifth of an undivided two-thirds of so much of the estate of the decedent as should then remain. The decree further provided that none of the estate should be disposed of by the widow, except for her personal use, benefit, comfort, and pleasure, and for the benefit of the estate. On a former submission of this cause an opinion was filed, but, a petition for a rehearing having been presented and sustained, the cause is again submitted for our consideration. The decree is criticised by the appellants as being indefinite and uncertain, and calculated to lead to controversy and further litigation; but, in view of the conclusion we reach, the form of the decree is not important. For the purposes of this appeal we shall treat the ruling of the district court on the demurrer and the decree as an adjudication to the effect that the will gave to the widow but a life estate in the property of the testator in case she did not remarry, or an undivided one-third of it if she did.

The appellees contend that the will in controversy falls within the rule which governed in Iimas v. Neidt, 101 Iowa, 348, 70 N. W. 203,Jordan v. Woodin, 93 Iowa, 453, 61 N. W. 948,Stivers v. Gardner, 88 Iowa, 307, 55 N. W. 516, and similar cases, but we are of the opinion that a comparison of the provisions of the wills construed in those cases with the one in controversy will disclose clear and controlling differences. The primary rule of all the cases has been to ascertain and give effect to the intent of the testator....