Hamilton v. Hamilton

• Decision Date: 19 November 1910
• Citation: 128 N.W. 380,149 Iowa 321
• Parties: HAMILTON v. HAMILTON ET AL.
• Court: Iowa Supreme Court

149 Iowa 321

128 N.W. 380

HAMILTON

v.HAMILTON ET AL.

Supreme Court of Iowa.

Nov. 19, 1910.

Appeal from District Court, Story County; R. M. Wright, Judge.

The opinion sufficiently states the case. Reversed.McCarthy & Luke, for appellant.

Cummings & Mote and U. S. Alderman, for appellees.

WEAVER, J.

In the year 1899 Tennetta M. Hamilton, a resident of Story county, died testate, leaving surviving her Charles Hamilton, her husband, who is plaintiff herein, and several children, who are defendants and appellees. By the terms of the will, after providing for the payment of debts and funeral expenses out of the personal estate of the testatrix, the residue is disposed in provisions reading as follows:

“Second. All the rest, residue and remainder of my estate real, personal and mixed, of which I may die seised or possessed, or to which I may be entitled, I will devise and bequeath to my beloved husband, Charles Hamilton, to have and to hold unto my said husband during his life with full power to sell, transfer and dispose of the same or as much thereof as may from time to time be needed for his support and maintenance during his said lifetime.

Third. I further direct that after the decease of my said husband, Charles Hamilton, all the then remaining property of my estate, both real, personal and mixed, shall revert to and is hereby given, devised and bequeathed to my children, equally, share and share alike.

Fourth. I hereby appoint my beloved husband, Charles Hamilton, of the county and state named, my sole executor of this my last will and testament and hereby exonerate him from giving bonds for the faithful discharge of his duties as such executor.”

This will was duly probated, and its validity, when rightly interpreted, is admitted by all parties. At the time of her death, Mrs. Hamilton held the legal title to the family homestead, consisting of three lots in the city of Ames on one of which the residence building is situated. This property included the bulk of her estate. After the probate of the will, plaintiff, believing that its effect was to vest him with a fee simple to said real estate, brought an action in equity to have his title so declared and quieted. To that proceeding his children were made defendants, and they appeared and contested his claim. In the same proceeding, by way of amendment to his petition, plaintiff alleged the need of funds to pay off incumbrances on the property and to make necessary repairs on the same, and asked an order allowing him to mortgage the property for that purpose. On trial the district court dismissed the bill, holding that the will gave to plaintiff a life estate only, and that no showing was made of any need for a sale of the property for his support. From that decree an appeal was taken to this court, and the decree affirmed, as appears by the opinion in Hamilton v. Hamilton, 140 Iowa, 282, 115 N. W. 1012. After the original opinion therein had been filed, a petition for rehearing was presented, asking the court to consider whether under the power annexed to the life estate the plaintiff was not the sole judge of his needs, and that whenever he in good faith determined that his reasonable maintenance and support required it he could sell or dispose of the property in whole or in part without first obtaining authority from the court. Thereupon a supplemental opinion was filed (140 Iowa, 285, 118 N. W. 375), holding that the question thus presented was not involved in the issues and had not been ruled upon by the trial court and was not adjudicated in the former opinion. After the termination of that proceeding, plaintiff instituted the action now at bar, setting up the provisions of the will, alleging that controversy had arisen between him and his remaindermen as to the extent of the power conferred upon him by said devise, and asking that the same be construed by the court as giving him the unrestricted right to mortgage or sell the property. Answering the petition, the defendants deny that the power of sale given the plaintiff by the will of his late wife can be exercised at his uncontrolled judgment or discretion, and allege that the question thus presented was decided and adjudicated against such claim in the former action. The trial court found for the defendants upon both defenses pleaded and dismissed the bill. Plaintiff appeals.

1. We are of the opinion that the plea of former adjudication cannot be sustained. Whether the pleadings in the former case did or did not present the issue now before us is not an open question. It was there decided and announced by us that the issue was not involved in that proceeding. To show that such was the decision, we have only to quote the closing sentence of the supplemental opinion, which reads as follows: “It is enough to say that the power of the life tenant under the terms of this devise to sell and convey the fee without order from the court was not raised by the pleadings, and there is nothing in the decree entered by the court below nor in the opinion heretofore filed in this court which attempts to settle or adjudicate that question.” That decision, we think, must be held conclusive against the plea of res adjudicata, and that the plaintiff is entitled to be heard upon the merits of his claim concerning the interpretation of the will in this result unaffected by the former decree.

2. That a life estate may be created with power annexed authorizing the life tenant to defeat or extinguish the remainder over by sale and conveyance of the fee is too well settled in this state and in most of the states to admit of serious argument. Webb v. Webb, 130 Iowa, 457, 104 N. W. 438;Wenger v. Thompson, 128 Iowa, 750, 105 N. W. 333;Podaril v. Clark, 118 Iowa, 264, 91 N. W. 1091;Spaan v. Anderson, 115 Iowa, 121, 88 N. W. 200. It is, of course, equally true that the grantor or testator may, if he so elect, make the exercise of the power subject to the order or approval of the court or any other restriction which he sees fit to impose, and a sale or conveyance in disregard thereof will be void as against the remaindermen. As, however, it is competent for the grantor or testator to make the power full and unlimited, the court will not ordinarily impose any restriction or assume any control over its exercise which is not expressed or clearly implied in the grant or devise by which it is created. It not infrequently happens, as in the present case, that the grant or devise of power to the life tenant is limited to a sale or other disposition to meet some contingency which may or may not arise in the future. The question who is to determine when the contingency so provided against has arisen, thus maturing the power to convey, is one which has quite frequently occupied the attention of the courts, and in the great majority of cases it is held that if the grant of power be otherwise full or general in its terms, and the determination of the question is one which involves the exercise of judgment and discretion, the decision made in good faith by the life tenant himself is final and conclusive. For example, in Richardson v. Richardson, 80 Me. 585, 16 Atl. 250, the court construes a will by which the testator gave the residue of his estate to his wife for life with power to “dispose of for her maintenance.” Acting under this power, the widow did convey the homestead in consideration for a life support. The heirs contested her right to make the conveyance, and the court says: “The first question is whether the transaction of deed and bond, the grantee surviving the grantor, was valid or void. If the parties acted in good faith--and such must be the presumption--we think it must be pronounced valid. A power to thus convey was conferred on the wife by the will. The mode and manner is not dictated to her. The purpose for which it may be done is indicated. She could dispose of a portion or all. Nothing restricts her as to the quantum of interest to be disposed of. The testator does not provide a remainder, but only disposes of one should it exist. * * * Her judgment governs, even though she exercises poor judgment. All rests in her own discretion. Counsel for remainderman raises objection to such an execution of the trust; but the objections apply more against such a kind of a trust than against its mode of execution. They were objections for the testator to have listened to. He did consider presumably the same objections and in his own mind overruled them. He requires no bond. He creates no trustee. He places all confidence in her, having all opportunities to judge of her capacities both mental and moral. It is said she should and could sell only as her wants from time to time required. That might be the judgment of some persons; but it...