Harlan v. Manington
| Decision Date | 17 November 1911 |
| Citation | 133 N.W. 367,152 Iowa 707 |
| Parties | J. M. HARLAN, Appellee, v. H. N. MANINGTON and JENNIE A. MANINGTON, Appellants |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. LAWRENCE DE GRAFF, Judge.
ACTION to cancel a contract for the purchase of certain real estate in Warren county, Iowa and to recover the sum of $ 200 paid by plaintiff on said contract. Defendants demurred to the petition, and, their demurrer having been overruled, they elected to stand thereon, and judgment was rendered against them as prayed. They appeal.
Affirmed.
O. C Brown, for appellants.
Hager & Powell, for appellee.
Plaintiff and defendants entered into a written contract, whereby the defendants for a stated consideration agreed to convey to plaintiff by warranty deed certain real estate in Warren county, this state. By the terms of the contract defendants agreed to furnish an abstract showing a fee-simple title to the property in said defendants. As part of the purchase price, plaintiff paid the defendants the sum of $ 200. It is claimed that defendants had no other than a life estate in said lands, and that the abstract furnished by them showed that they did not have a fee-simple title. Defendants tendered a deed and an abstract to the plaintiff, which he, plaintiff, refused to receive, but, on the contrary, elected to rescind the contract and demanded the return of the $ 200.00 already paid. The issue on this appeal is the nature and character of defendants' title to the property agreed to be conveyed. If they have nothing but a life estate, the ruling on the demurrer is correct. On the other hand, if they have a fee the demurrer should have been sustained, and the decree should be reversed. Whatever defendants' title, it came to them through the will of one Henry Nourse, deceased, who at the time of his decease was a resident of the state of Illinois, and was seised of certain land and personal property, and through a deed of the land from one James McGee, who derived whatever authority he had to convey from the aforesaid will. It is alleged that the consideration for this conveyance was paid by Hiram Wilson and James McBrown, executors of the will of Henry Nourse, and that the land was purchased by these executors in virtue of the provisions of the will. This deed ran to defendant Henry N. Manington, and it is alleged that both grantor and grantee therein were residents of Illinois at the time it was made. Necessarily the question arising must be solved by a reference to the will and deed, and we here set out the material parts thereof.
The clauses of the will relied upon read as follows:
Third. I give, devise and bequeath unto my executors and executory trustees hereinafter named and to their successors as hereinafter specified in trust for the use of my daughter, Jane Nourse, during such time as she shall continue to be insane one-third of my estate that shall remain after the payment of all just claims and the bequest of two thousand dollars ($ 2000.00) hereinafter set forth to be managed and used for her benefit and support as long as she shall continue to be insane and in case she shall again become sane and of sound mind and memory then this devise and bequest shall vest in her and her heirs absolutely, but in case of her decease before she shall so become sane and of sound mind, then all that shall remain of said devise and bequest I do hereby give, devise and bequeath to my grandchildren, Henry N. Mannington, Blanche E. Mannington, Ethel L. Mannington, and Anna A. Mannington, and in case of the previous decease of either of them then to the survivor or survivors of them and their heirs absolutely, subject, however, to any limitations hereinafter made as to the time when it shall be turned over to them.
Fourth. I do hereby give and bequeath the sum of two thousand dollars ($ 2000.00) to Mrs. Abby H. Mannington of Geneseo, Illinois.
Fifth. I do hereby give, devise and bequeath unto my said grandchildren Henry N. Mannington, Anna A. Mannington, Blanche E. Mannington and Ethel L. Mannington one-third part of my said estate after the payment of all just claims and the said bequest of two thousand dollars ($ 2000.00) and in case of the decease of either of them without issue then to the survivor or survivors of them, and in case of the decease of either of said grandchildren leaving a child or children living at the time of my decease such child or children shall take the said deceased parent's share in this devise and bequest, and it is hereby directed and ordered that in the division to be made by virtue of this and division hereof numbered 'Third' my said grandchildren shall each share equally and alike in such division and at the time they severally arrive at their majority and become of lawful age they shall each receive as soon as it can be so arranged one-third part of said share of said estate, to wit: one-third of the distributive share to which such grandchild is entitled by virtue of this devise and bequest, and at the age of twenty-five (25) years they shall severally receive another third part thereof and the remaining third part shall be by said executors invested in productive real estate in severalty for their several uses and the title so arranged that the said grandchildren or their heir or heirs in case either of them shall have deceased leaving issue surviving them shall receive the net income of such real estate, and when of lawful age control the use thereof during the natural lives of said devisees and such devisees shall have full power to dispose of the remainder of said real estate by will and in default of such will said remainder shall descend to the lawful heir or heirs of such devisee, and during the minority of either and all of my said grandchildren their father John Mannington is hereby empowered to manage, lease, keep in repair and insured if necessary all such real estate so owned for life by them and out of the rents thereof pay all taxes and necessary expenses and use the balance of the proceeds for their several benefit as he may judge best, and no bond shall be required of him for the execution of such trust and during said minority their money and whatever securities it may be invested in shall remain in the care and control of my said executors and executory trustees and also the several shares of the same payable at their attaining the age of twenty-five (25) years until the same is paid over to them, and in so much as it will probably be found impossible to make the said division of estate precisely in thirds or to judiciously purchase the several items or portions of real estate so as to make them of precisely equal value I do hereby order and direct that my executors and executory trustees exercise their best judgment and discretion therein so that in case any one has real estate of less value than another such devisee shall be paid the difference as nearly as can be done in their best judgment in money or other personal estate and whatever my said grandchildren or their heirs shall receive by virtue of devise and bequest numbered 'Third' herein shall be in all respects distributed and invested in the manner in this division hereinbefore specified. . . .
And lastly, I do hereby nominate and appoint Hiram Wilson and Whitfield Sanford of Geneseo, Henry County, Illinois, my executors and executory trustees of this my last will and testament, hereby revoking all former wills by me made and confirming this and this only to be my last will, and I do hereby direct that no bond or security be required of them as such executors and trustees nor of the persons hereinafter named by me as their successors, but that this waiver extend to no other appointee by virtue of the provisions hereinafter set forth.
And I do hereby empower my said executors and executory trustees to collect by law or otherwise all debts and demands due or extend the same, make, execute, acknowledge and deliver all such deed or deeds, contract or contracts, release or releases, lease or leases, and all such instrument or instruments in writing under seal or otherwise and to do all such acts or things as may be by them judged wise, just and convenient in and about the execution of this will and the management of the trusts herein set forth, including the power to sell and convey real estate in any place and the investment and loaning of money or purchasing real estate without as well as within the state of Illinois, and to make all divisions of estate herein provided for as equally as possible and do and perform all and singular all such acts and things as would be lawful for me to do in the premises were I living and for the best interests of said estate, and in case the said Hiram Wilson shall for any cause fail to serve as such executor and executory trustee until the final completion of the execution of this will and the trusts therein set forth, then and in that case I do hereby nominate and appoint his brother George Wilson to be his successor with like powers as hereintofore conferred upon said Hiram Wilson, and in case the said Whitfield Sanford shall for any cause so fail as aforesaid, then and in that case I do hereby nominate and appoint George W. Shaw of said Geneseo to be his successor with like powers as hereinfore conferred upon said Whitfield Sanford, and in case either of said contingent successors shall die, remove from the county of Henry aforesaid or enter upon the discharge of the duties of the office of such executor and executory trustee as aforesaid I do hereby empower the then acting executors and the remaining contingent successor or majority of them to appoint in writing over their signatures another such contingent successor who, upon signifying...
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