Hodge v. Wellman

• Decision Date: 28 October 1920
• Docket Number: 33119
• Citation: 179 N.W. 534,191 Iowa 877
• Parties: WALLACE HODGE et al., Appellants, v. CHARLES A. WELLMAN et al., Appellees
• Court: Iowa Supreme Court

179 N.W. 534

191 Iowa 877

WALLACE HODGE et al., Appellants, v. CHARLES A. WELLMAN et al., Appellees

No. 33119

Supreme Court of Iowa, Des Moines

October 28, 1920

REHEARING DENIED JUNE 25, 1921.

Appeal from Wapello District Court.--C. W. VERMILION, Judge.

ACTION in equity by the heirs at law of Peter G. Ballingall deceased, praying that they be decreed to be the owners of the Ballingall hotel property in the city of Ottumwa. A demurrer to the petition was sustained, and judgment entered in favor of defendants for costs. Plaintiffs appeal.

Affirmed.

L. L Duke and Gilmore & Moon, for appellants.

McNett & McNett, for appellees.

STEVENS, J. WEAVER, C. J., LADD and ARTHUR, JJ., concur.

OPINION

STEVENS, J.

Peter G. Ballingall died in 1891, and his will was admitted to probate in Wapello County on August 25, 1891. By the ninth paragraph thereof, he devised certain real property to the city of Ottumwa in trust for certain designated purposes. This paragraph is as follows:

"All that portion of my estate known as the Ballingall House property, being Lot Three Hundred and Thirty-seven (337) and the northwest 22 1/2 feet off of Lot Three Hundred and Thirty-eight (338) in the city of Ottumwa, Iowa. Also the northwest twenty-two feet, more or less, off of Lot Three Hundred and Thirty-nine (339) (being property known as the Magnolia Restaurant) in the city of Ottumwa. Also the one acre of ground, more or less, upon which is situated what is known as the Pony Pork House now used as a pickle factory, in the city of Ottumwa, Iowa. Also all that part of Outlot Thirteen (13) not hereinbefore devised. Also the northwest forty-four (44) feet off of Lot Three Hundred and Seventy (370) in the city of Ottumwa, Iowa. I will and devise to the city of Ottumwa, Iowa, subject to the charges herein and mortgages thereon, in trust for the following uses and purposes, namely: To be managed and controlled by three trustees, to be named and selected by the city council of said city and to serve respectively as follows: One for one year; one for two years; one for three years, and after that one to be annually selected for three years. And at no time shall there be more than two of said trustees of the same political party. But nothing herein contained shall disqualify any of said trustees from being his own successor, said trustees shall give bond in double the amount they are expected to handle to be approved by the city council and said trustees shall for their services receive such compensation as may be allowed and fixed by the city council. The duties and powers of said trustees shall be as follows: The Ballingall House and tenements connected therewith are under the supervision of said trustee, to be kept up perpetually and forever, the hotel retaining the same name, which it now bears. The southeast one hundred and ten (110) feet of that part of Outlot Thirteen herein devised, is to be used, and kept up under the supervision of said trustees as a park without expense to my estate, said 110 feet of Outlot 13 is represented upon the plat referred to in first clause of this will, as Lots Seven (7), Eight (8), Nine (9), Ten (10) and Eleven (11). The twenty-two (22) feet of ground lying northwest thereof and represented on said plat as Lot Twelve, shall be leased by said trustees to any suitable person who will use the same for a flower conservatory. If not so leased the same shall be used by said trustees in connection with said park. All the other property herein devised and placed in charge of said trustees may by them, with the authority and approval of the city council, be leased for any length of time or be by them sold and I so direct, whenever it can in their judgment be done to good advantage. The purpose and object of this provision is to provide in the first place under the supervision and management of said trustees a sinking fund of twenty thousand dollars ($ 20,000) for the purpose, with insurance proceeds and other accumulations of rebuilding property in case of fire or of remodeling, the hotel building to suitably keep up with the times and the growth of the city.

"I further direct that after the founding and accumulations of said sinking fund before named, the said trustees from the interest derived therefrom together with the rents and incomes that may be yielded by and from said Ballingall House property, and other property above described a second fund of six thousand dollars ($ 6,000) shall be raised and founded for the express use and purpose of maintaining a public library now established in the city of Ottumwa and for the aid and increase of the same. And I here suggest that the management of said library as soon as possession of sufficient funds from this bequest or otherwise, erect on the ground hereinbefore devised for that purpose, a suitable library building, in such manner that rentals also may be derived from such parts as are not needed for the library, for the increase and assistance of its revenues. But should said library association refuse to accept or use the said ground for the purpose for which it is devised, then I direct and my will is that then the same shall go to the city of Ottumwa, Iowa, for the sole purpose of being used as a part of the park above provided for.

"After the founding of the perpetual sinking fund of $ 20,000 as hereinbefore provided and the expenditure of the further fund of six thousand dollars to be raised as above directed for the benefit of the public library of Ottumwa. I hereby will and direct that, under the supervision of the trustees hereinbefore provided for all accumulations arising from the rents of the said Ballingall House property, and the other property above described and from the remainders returning to my general estate from the life estate hereinbefore devised or bequeathed; from all funds or sources that may otherwise fall in or accrue to the residuum of my estate and all other property not herein disposed of that I may possess, shall go and be devoted under the direction of trustees to the following uses, and purposes annually: One fourth to and for the further benefit of the library association hereinbefore named.

"One fourth to the poor, and needy people of the city of Ottumwa, Iowa, who are dependent upon their own labor for a livelihood.

"One fourth to the religious societies of said city, without regard to sect and to include all denominations professing to work for the good and well-being of mankind.

"One fourth to the accumulation of a fund to build or aid in building and maintaining a foundling hospital with the especial view and purpose of relieving unfortunate females and for protecting and caring for their offspring. But I direct and authorize that a part of all of the funds just mentioned may be temporarily changed, and diverted for the public good in case of fire, flood, epidemic or other distress."

The city of Ottumwa declined to accept the trust and to appoint trustees, as provided by the will; whereupon the district court of Wapello County appointed the defendant Walsh as a trustee under said will, who, with A. G. Harrow, as executors, administered said estate and looked after and managed the property thereof, until the death of Harrow, in December, 1918, and the subsequent removal of the defendant Walsh from the state, when Charles A. Wellman was appointed as executor and trustee.

Plaintiffs, in their petition, allege, in substance, that all of the real estate referred to in the above paragraph of the will of Peter G. Ballingall was sold by the executors and trustees for $ 21,700; that the Ballingall House, which is a four-story brick building, has been used as a hotel since the death of testator and long prior thereto; that, during the life of testator, it was the leading hotel in said city; but that a new, modern, fireproof hotel has recently been erected, at a cost of over $ 300,000; that it has resulted in the withdrawal of much of the patronage of the Ballingall House, and that the latter cannot be maintained and operated, or leased, at a profit; that the building is old and deteriorating; that it is incumbered by a mortgage of $ 10,000; that no part of the sinking fund of $ 20,000, or fund for the Ottumwa library association, has been created; and that, on account of the changed conditions, it will be impossible for this to be done in the future; and that, because thereof, the provisions of said will for the library association, the poor and needy of the city of Ottumwa, the religious societies of said city, and the proposed accumulation of a fund for the erection and maintenance of a foundling hospital, must fail. They therefore pray a decree so holding, and vesting the legal title to the hotel property in plaintiffs, as the heirs at law, or the grantees thereof, of the said Peter G. Ballingall. A demurrer to this petition was sustained by the court, and plaintiffs, electing to stand upon the allegations thereof, appeal.

A brief restatement of the provisions of the ninth paragraph of the will in question will, perhaps, assist us to more clearly understand the claims of respective counsel. Five separate tracts of real property, including the Ballingall House property, are thereby devised to the city of Ottumwa, subject to certain charges therein and mortgages thereon, in trust to be managed by trustees, to be appointed in a manner therein designated; the hotel and tenements connected therewith, under the supervision of the trustees, to be kept up perpetually and forever, under the name of the Ballingall House. The remaining four pieces of property are to be leased or sold by the trustees whenever, in their judgment, this can be done to good advantage. The purpose and object of the sale of said property are to...