Henkel v. Auchstetter
| Citation | 39 N.W.2d 650,240 Iowa 1367 |
| Decision Date | 15 November 1949 |
| Docket Number | 47483. |
| Parties | HENKEL et al. v. AUCHSTETTER et al. |
| Court | United States State Supreme Court of Iowa |
Donnelly Lynch, Lynch & Dallas, of Cedar Rapids, and Hollerich & Hurley, of LaSalle, Illinois, for appellants.
Van Oosterhout, Te Paske & Rens, of Orange City, for appellees.
This appeal involves the determination of the uniformly troublesome question--under our decisions--of whether a remainder is vested or contingent.
From the facts, as properly pleaded in the amended petition and exhibits attached, it appears that: the testator, Christoph Henkel, was a resident of Lee County, Illinois, at, and before, his death, on November 23, 1895, at the age of fifty-seven years; he was survived by his widow, Maria Anna Henkel, his son George, and three daughters, Catherina Bauer Maria Juliana Auchstetter, and Elizabeth Auchstetter; at the time of his death at his home in Lee County Ill., his family consisted of himself, his wife, his daughter, Maria Juliana, and her husband and child; not being well physically, the testator, on March 29, 1895 had a lawyer at Mendota, Illinois, active in the practice, skilled in the drafting of legal instruments, having an extensive probate practice, draft his last will and testament, which he duly executed; at that time, the testator was the owner in fee simple, of his homestead farm of 135 acres, and also three acres of timber land, all in said Lee County, and of several hundred acres of farm land in Sioux County, and Ida County Iowa; at that time his daughter, Maria Juliana and her child were living in his home, and he was more intimately associated with them, than with his other children and grandchildren, who were all residents of Iowa; at the time the testator's will was executed, each of his four children were married and each of them had living children, except Elizabeth Auchstetter, to whom no child was ever born; testator's will was admitted to probate in Lee County, Illinois on December 6, 1895, and as a foreign will in Sioux County, Iowa, on April 8, 1909; the testator had many times stated that it was his intention to so dispose of his property that after his death it would not go to his in-laws but should be kept within his own family.
Testator's will, set out in exhibit made a part of petition, provided in substance as follows:
1st. Directed the payment of his debts and funeral expenses and the erection of a monument at his grave;
2nd. Gave to his son George the use and income of 80 acres of land in Sioux County for life, 'and after his death the same shall go to his children of his first wife forever'.
3rd. 'I give and bequeath to my beloved wife, Maria Anna Henkel, the use and income of all the rest of my estate, real and personal or mixed, wheresoever and whatsoever the same may be at the time of my death, during her natural life, all of which shall be in lieu of dower, and after her death all shall be divided as follows:'
The only real estate involved in this action is that devised to Elizabeth Auchstetter in the '6th' paragraph of the will. The controversy is whether Elizabeth took a vested remainder in the land, or whether the remainder was contingent upon her surviving her mother. The life use and income of testator's property, after compliance with the '1st.' and '2nd.' paragraphs of the will, which was given to his widow in the '3rd.' paragraph, terminated with her death on May 29, 1915.
Testator's daughter, Elizabeth, had married Peter Auchstetter in January, 1888. She was childless when the will was made. She did not survive her mother, but died testate on February 2, 1914, survived by her husband Peter Auchstetter, but with no child born to her. On March 13, 1908, Elizabeth Auchstetter executed her will, appointing her husband, Peter, as executor, and devising and bequeathing to him, 'his heirs and Assigns forever' * * * all my estate, real, personal, or mixed, whatsoever and wheresoever the same may be at the time of my death.' The will was admitted to probate in LaSalle County, Illinois on March 12, 1914, and Peter Auchstetter, the qualified executor, alleged that the testatrix died seized of the real estate described in the '6th.' paragraph of the Christoph Henkel will. On June 24, 1914 the will of Elizabeth Auchstetter was admitted to probate as a foreign will in Sioux County, Iowa.
After the death of Maria Anna Henkel, the testator's widow, Peter Auchstetter took possession of said land under the belief that Elizabeth Auchstetter had been devised a vested remainder therein by her father's will, which estate had passed to him by the will of Elizabeth. Peter Auchstetter retained the uninterrupted possession and use of said land until 1936. After the death of Elizabeth, Peter Auchstetter married the defendant, Katherine Auchstetter, and on or about March 24, 1936, in an attempt to make a gift to his wife, and to create a joint tenancy in said real estate, Peter and Katherine, joined in the execution of a deed conveying it to one Lauer, who, on the same day, reconveyed the said land to Peter Auchstetter and Katherine Auchstetter, husband and wife, as joint tenants with right of survivorship. Thereafter they jointly possessed and used the land, through tenants, until the death of Peter Auchstetter in 1948. The defendant, Katherine Auchstetter, claims title and ownership of the land, as the surviving grantee in said deed from Lauer.
On the death of Elizabeth Auchstetter, February 2, 1914, her sole heir was her mother, Maria Anna Henkel. When the latter died intestate on May 29, 1915, a resident of Mendota, Illinois, her heirs and the heirs of Elizabeth Auchstetter, determined as of that date, were the same persons, namely, Maria Juliana Auchstetter, Catherina Bauer (who died intestate on June 12, 1935), and the seven children of George A. Henkel (who died August 21, 1907).
The plaintiffs and the three defendants, other than Katherine Auchstetter and Fred Fischer, are Maria Juliana Auchstetter, only living child of the testator, and the living descendants of Catherina Bauer, and of George A. Henkel. In paragraph 3 of their petition, they allege: 'That the plaintiffs base their claim to ownership to the real estate * * * on the fact that the will of Christoph Henkel, * * *, devised only a contingent remainder in the real estate to Elizabeth Auchstetter, and, by reason of her death prior to that of the life tenant, no interest ever vested in her, but instead vested in her heirs at law as provided by the will; * * *.'
The motion to dismiss the petition was based upon three grounds. The court overruled the first and third grounds and sustained ground two which alleged:
The only error assigned by plaintiffs is the ruling of the court sustaining said ground two of defendant's motion to dismiss the petition. Defendants also assert that the assigned error embraces the only issue and question for determination by the court.
I. Because of some typing errors and faulty punctuation in the transcript of the Illinois probate proceedings filed in the office of the Sioux County clerk of the district court at the time the testator's will was there admitted to probate, and because of the use made of the words 'and' and 'or' in the paragraphs of the will, the trial court criticised the will as being carelessly drawn. The court expressed the conclusion therefrom, thus: 'If we assume that he thus intentionally and understandingly, used the words 'or' and 'and', then we must assume that the testator intended to discriminate between his children; which assumption is not sustained by the provisions of the will as a whole, * * *.'
Defendants make similar criticisms in their argument. The matters criticised are of little consequence. They are made only as affording some foundation for the appellees' contention that in the '6th' paragraph of the will the testator or his lawyer, carelessly, inadvertently, or unintentionally, used the word 'or' in the last six words of the paragraph, instead of the word 'and', which they insist was the word...
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Henkel v. Auchstetter
...240 Iowa 136739 N.W.2d 650HENKEL et al.v.AUCHSTETTER et al.No. 47483.Supreme Court of Iowa.Nov. 15, Leo Henkel, and others, brought an action against Katherine Auchstetter, and others, for the recovery of realty. The District Court for Sioux County, R. G. Rodman, J., sustained the motion of......