In re Eckey's Estate

• Citation: 185 N.W. 118,192 Iowa 572
• Decision Date: 22 November 1921
• Docket Number: 34046
• Parties: IN RE ESTATE OF HENRY C. W. ECKEY. v. HENRY ECKEY et al., Appellants OSCAR ECKEY et al., Appellees,
• Court: United States State Supreme Court of Iowa

185 N.W. 118

192 Iowa 572

IN RE ESTATE OF HENRY C. W. ECKEY.

OSCAR ECKEY et al., Appellees, v. HENRY ECKEY et al., Appellants

No. 34046

Supreme Court of Iowa, Des Moines

November 22, 1921

Appeal from Henry District Court.--OSCAR HALE, Judge.

APPLICATIONS in probate to require the executor of decedent testator to convey to appellees certain real estate in conformity with the terms of the will. The material facts are stated in the opinion. The trial court sustained the appellees' contentions.

Affirmed.

J. V Gray and J. C. McCoid, for appellants.

Seerley & Clark and W. F. Kopp, for appellees.

DE GRAFF, J. EVANS, C. J., WEAVER and PRESTON, JJ., concur.

OPINION

DE GRAFF, J.

The will of Henry C. W. Eckey was duly admitted to probate February 25, 1918, and Henry Eckey, Jr., nominated in the will, was appointed and duly qualified as executor.

After providing for the payment of debts and making a bequest of $ 1,200 to Ernest Eckey, a son, the will contains the following provisions:

"III. That the balance of my property, both real and personal, be appraised and divided equally between my children. This being divided in eight equal parts."

"V. My real estate to be appraised by three disinterested parties. I nominate and appoint V. E. Lauer, W. E. Buchanan and Aug. C. Wick, as the three appraisers."

"VI. If any of my children reside on any of sad real estate, they to have first chance to purchase same at appraised value."

On March 22, 1918, under a commission issued by the clerk of the district court, the appraisers named in the will appraised the property belonging to the estate. The land in controversy consisting of two different parcels of 100 acres each was appraised respectively in the sums of $ 23,800 and $ 24,500.

At the time of the death of the testator, Walter Eckey, son of the testator, was residing on one tract and had been residing there since 1906. Oscar Eckey, another son of testator, was at said time residing on the other tract and had been residing there about ten consecutive years.

On January 29, 1919, Oscar Eckey and Walter Eckey each served upon the executor written notice of his election to purchase the tract upon which he was residing at the appraised value, and each in his notice tendered payment to the executor of the appraised value.

About February 26, 1919, Oscar and Walter each filed an application in the probate proceeding asking an order requiring the executor and such other of the heirs as might be necessary to convey to him the particular parcel of land on which he was residing upon the payment of the appraised value.

To these applications, answers were filed by the executor and legatees, appellants herein, alleging among other things that the values fixed by the appraisements were not fair values, and that appellees had elected not to purchase the land under the will, but to share equally with the other legatees.

It further appears that about the 18th day of April 1918 the executor filed an application in the probate proceeding for the construction of the will and for authority to convey, and on the same day there was filed a petition by part of the legatees against the others for a partition of the lands belonging to the estate of decedent, including the parcels above described. By agreement of the parties all of the above proceedings in connection with the real estate covered by the will were tried together, which resulted in a decree in which the court found that the appellees, Oscar Eckey and Walter Eckey, had the right to purchase the respective...