Hausen v. Dahlquist

• Citation: 5 N.W.2d 321,232 Iowa 100
• Decision Date: 11 August 1942
• Docket Number: 45996.
• Parties: HAUSEN v. DAHLQUIST et al.
• Court: United States State Supreme Court of Iowa

5 N.W.2d 321

232 Iowa 100

HAUSEN v. DAHLQUIST et al.

No. 45996.

Supreme Court of Iowa

August 11, 1942

Charles A. Reese, of Red Oak, and Tage Joranson, of Chicago, Ill., for appellants.

R J. Swanson, of Red Oak, for appellee Viona Hausen individually and as trustee under will of Charles A Dahlquist, deceased.

Floyd E. Billings, of Red Oak, for appellees, Jonas Erickson Isabel Lindgren, Ambrose Erickson, Stella Erickson, and Jules Erickson.

Leroy H. Johnson, of Red Oak, for appellee Darwin Sellergren, administrator of estate of Irene Inez Erickson, deceased.

BLISS Justice.

The rights of all parties to the real estate sought to be partitioned arise under the will of Charles A. Dahlquist, deceased, and a trust agreement of his widow, Emma F. Dahlquist, who elected not to take under the will. The testator, a resident of Chicago, Illinois, where he died November 15, 1933, and where his will was probated on December 8, 1933, was the owner of four parcels of land containing 450 acres in Montgomery County, Iowa, at his death. By his will he gave to his wife his personal effects and $3,000 absolutely. The remainder of his property, he gave to his wife, his sons, Laun and Herene, and his daughters, Irene Erickson and Viona Hausen, as trustees, to hold for specified trusts, purposes and conditions, to wit: (1) The trustees were given full power to sell the property as they saw fit for reinvestment or to carry out the trust provisions; (2) one-half of the net income was to be paid to his wife during her life, and the balance of such income was to be divided into five equal parts, one of which was to be held by the trustees and expended by them for the testator's son, Leroy, during his life, and the other four parts to be paid to his children, Laun, Herene, Irene and Viona; (3) if no sale was made before, upon the death of the testator's widow, the trustees were to divide the trust estate into five equal parts, one of which should be transferred, conveyed and set over, respectively, to each of the children, Irene, Laun, Herene, and Viona, and one part retained by the trustees for Leroy, which division was to be conclusive on all persons interested; (4) on the death of Leroy, his share should pass equally to his four brothers and sisters; (5) on the death of any child prior to the distribution of the trust estate, the share of such child should pass to his heirs; (6) in case of the death of any trustees, the survivors should carry on as trustees and executors. He nominated his wife and the children, except Leroy, as executors.

On November 7, 1934, the testator's widow filed a written renunciation of any legacy, devise or other provision for her under the will, and elected to take instead an absolute one-third of all property owned by testator when he died, and any other interest to which she was legally entitled.

On February 3, 1937, the widow, as donor, executed a trust to her son, Laun, as trustee, and by it and other instruments conveyed to him in trust the Montgomery County land, and other real and personal property. By the terms of the trust agreement, the trustee is to hold the property for the following trust purposes, to wit: (a) All income from the trust to be paid the donor during her life; (b) all the rest, residue and remainder of the earnings, avails and proceeds of the trust estate to pass as follows, one-fifth each to Laun and Leroy, and one-fifth, respectively, to the children of Irene, Viona, and Herene; (c) if any beneficiary be under the age of 21 years when entitled to receive any distributive share, the trustee shall hold it until the beneficiary has reached the age of 21 years; (d) during the lifetime of the donor the trustee could deal with the property only as authorized by her in writing; (e) it is agreed between the parties hereto, and by any person who may become entitled to any interest under the trust, that such interest shall consist solely of a power of direction to deal with the title to said property and to manage and control said property, and the right to receive the proceeds from rentals, mortgages, sales or other disposition of said premises, and that such right in the avails of said property shall be deemed personal property, and may be assigned and transferred as such; that no beneficiary has or at any time shall have any right, title or interest in or to any portion of said real estate as such, either legal or equitable, but only an interest in the earnings, avails and proceeds; (f) subject to the rights of the donor, the trustee is given full power to sell or mortgage any of the trust property and any reinvestments from time to time, as he sees fit, for reinvestment, or to carry out the provisions of the trust; (g) any property remaining after 20 years from date of trust agreement shall be sold publicly by the trustee, and the proceeds divided as stated.

On the day the trust agreement was executed, the widow also quitclaimed all her right, title and interest in the Montgomery County land to Laun, as trustee, under the trust. This deed was filed for record in Montgomery County, Iowa, on August 29, 1938. The widow of the testator died intestate in Chicago, on August 23, 1938, without having ever revoked her trust agreement. Irene Erickson, daughter of the testator, died intestate, a resident of Montgomery County, Iowa, on June 3, 1937, leaving her husband, Jonas, her children, Isabel Lindgren, 25 years old, Ambrose, 22 years old, Stella, 17 years old, and Jules, 15 years old, as her only heirs. Darwin Sellergren, defendant-appellee, qualified as administrator of her estate.

Viona Hausen, the plaintiff-appellee, has three living children, and Herene A. Dahlquist, appellant, has five living children. Of the first, two are minors. All of the latter are minors.

On June 24, 1940, the plaintiff-appellee, individually and as a trustee under the will of the testator, filed her petition in equity, alleging her ownership in fee simple of a two-fifteenths interest in the land, reciting the facts set out herein, listing those interested in the real estate and the fractional undivided share of each acquired under the will and under the trust agreement of the testator's widow, and alleged that Laun, Herene and Viona were the only qualified trustees. In the petition and amendments thereto, she further alleged that several of the owners were minors; "that it is impossible for the Trustees * * * to equitably divide the real estate * * * in kind, for the reason that said real estate consists of various parcels, some of which are improved and some of which are not improved, and for the further reason that it is impossible to divide said real estate into as many parcels as there are various owners, without destroying the value of said real estate; that it would be inequitable, unjust and unfair to the various owners to divide the real estate in kind; that it is necessary to sell said real estate and divide the proceeds derived therefrom among the various owners, * * * in order to make a fair, just and equitable distribution thereof; that the Trustees are unable to agree among themselves upon a division or sale of said real estate; * * * that the Trustees fail, neglect and refuse and continue to fail, neglect and refuse to divide the real estate or sell same and divide the proceeds among the beneficiaries although often requested by the beneficiaries or some of them to do so; that there is no possibility of the Trustees agreeing among themselves upon the distribution of the trust and there is no possibility of the Trustees dividing said real estate or selling same and dividing the proceeds." She prayed judgment confirming the shares as alleged, quieting title thereto, ordering a sale of the property if it could not be equitably divided, a division of the proceeds of sale according to the respective interests, and the other relief commonly prayed for in a partition suit.

The appellants filed motion on January 27, 1941, to dismiss the petition as amended upon the following grounds: (1) Under the testator's will, two-thirds of his estate passed to Laun, Herene and Viona upon the trust that they were granted full power to sell said trust estate, for such prices and terms as they saw fit, to carry out the trust, and that upon the death of testator's wife they were to divide the estate into five equal parts as provided in the will; (2) the will does not grant the trustees, or any of them the power to institute a partition action, but invests them with the duty and discretion of dividing the estate, and equity will not substitute its judgment for such duty and discretion; (3) that in making such division, the trustees are not required to transfer to plaintiff a two-fifteenth part in each item of property but may transfer to her more or less, so long as the part is equal to the other four parts, and when the division is made it will be conclusive on plaintiff; (4) plaintiff in her individual capacity has no legal or equitable estate or interest in the real estate and is therefore not entitled to maintain the proceedings; (5) that as co-trustee she does not hold such an estate or interest to authorize her to maintain the proceeding; (6) the trust created by the will is not a naked, dry or passive trust, but is an active and subsisting trust; (7) the will specifies a definite time for terminating the trust; (8) that the partition and sale would substitute the judgment of the court for that of the trustees, would defeat the intention of the testator, violate the trust provisions of the will, prevent the trustees in their discretion from retaining any interest in the real estate for Leroy, and would compel the trustees to breach their trust.

The surviving husband and the children of Irene Erickson,...