Ihle v. Ihle

• Decision Date: 15 December 1936
• Docket Number: 43501.
• Parties: IHLE et al. v. IHLE et al. (IHLE et al., Interveners).
• Court: Iowa Supreme Court

270 N.W. 452

222 Iowa 1086

IHLE et al. v. IHLE et al. (IHLE et al., Interveners).

No. 43501.

Supreme Court of Iowa.

December 15, 1936

Appeal from District Court, O'Brien County; O. S. Thomas, Judge.

Action in equity to determine executors' rights of retention or deduction from share of beneficiary upon distribution of the estate.

Affirmed.

Diamond & Jory, of Sheldon, for appellants.

O. H Montzheimer, of Primghar, for appellees Albert and Charles Ihle.

Hobbet & Blue, of Eagle Grove, for interveners and appellees Merton Ihle and Goldie Lindsey.

W. A Hamilton, of Hartley, for appellees Walter and Helen Ihle.

RICHARDS, Justice.

On January 28, 1928, Charles E. Ihle died testate. The first paragraph of his will directed the payment of debts. The second paragraph is in following words: " I, hereby order and authorize my hereinafter named executors to sell within a reasonable time after my death for the highest price obtainable, any and all real estate of which I may die seized and possessed or to which I may be entitled, without order of court, appraisement, sale bond or other court proceedings, it being my intention that my said executors shall have authority to execute deeds and other papers connected with the sale of said real estate as effectively as I might, if living."

In the third paragraph decedent provided that, after all his property, real and personal, had been converted into money by his executors, the proceeds, remaining after payment of debts, were to be distributed by the executors to decedent's six children, each being bequeathed one-sixth of said proceeds excepting that from each of three of such shares a $600 advancement was to be deducted. The will then provided that the rest, residue, and remainder of said proceeds were given and bequeathed, share and share alike, to the six children. Two of the children were nominated in the will as executors. This appointment was confirmed by the probate court and the two executors qualified. They are the plaintiffs herein. The petition in this case named Walter M. Ihle, one of the six beneficiaries, and Helen Ihle, his wife, and Herman Mericle, C. Chalstrom, and Primghar Savings Bank as defendants. Afterward others of the six beneficiaries appeared by petition of intervention adopting plaintiffs' petition and praying that the relief therein sought be granted. The result is that, if there be included the two executors who were also beneficiaries, all persons who have interests in the estate under the provisions of the will are parties to this action.

The petition alleged that the beneficiary Walter M. Ihle was insolvent; that he was indebted to decedent upon a $300 note; that he also is indebted to the executors for rent of a certain farm of the estate that the executors had leased to him. The relief sought by the plaintiffs was establishment of the right on their part, as executors, to withhold or deduct the amount of these debts from the portion of the proceeds of the sale of the property of the estate payable to Walter as a beneficiary. The trial court decreed that such deduction should be made, and with priority over any payment to appellant Primghar Savings Bank upon its claim against Walter M. Ihle. Therefrom the bank has appealed.

The claim against Walter on which appellant in argument relies consists of a promissory note and mortgage given by Walter to Herman Mericle and C. Chalstrom, appellants, and by them assigned to the bank. It was the bank's money that was involved, and appellants Mericle and Chalstrom make no contention that they had any remaining interests after making the assignment. The mortgage was executed on April 29, 1931. It conveys " Our one-sixth interest in North Half of South East Quarter of Section Eighteen (18) Township Ninety Four (94) North of Range Forty One (41) O'Brien County, Iowa, * * *" and in another described tract in that county. The mortgage was given as security additional to a chattel mortgage for the same amount payable to the bank.

It is conceded that the $300 note that Walter owed the testator should be deducted in the manner that was decreed. Appellant's contention pertains to only the indebtedness for rent. The claim made by appellant bank is that the executors had no right or retainer or deduction therefor, because such debt was not an estate indebtedness, but was simply an indebtedness owing from one to other tenants in common. Were said retainer or deduction not made, a larger amount would have been payable upon the bank's claim under the terms of the decree.

Appellant bank concedes that the terms of the will worked an equitable conversion of the land of decedent into personalty upon the death of the testator. Under the prior holdings of this court the necessity of such conclusion is quite patent, without need of discussion. But appellant would distinguish between such constructive conversion occurring at the time of decedent's death and what appellant terms actual conversion of the land into money by a sale and conveyance by the executors, and mention is made of the obvious fact that between the constructive and the so-called actual conversion there is an intervening period of time. Concerning such period appellant says that ...