In re Heckmann's Estate
| Decision Date | 02 April 1940 |
| Docket Number | 44935. |
| Citation | 291 N.W. 465,228 Iowa 967 |
| Parties | In re HECKMANN'S ESTATE. v. BRENTON STATE BANK. HECKMANN et al. BRENTON STATE BANK v. HECKMANN et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Polk County; John J. Halloran, Judge.
Action for partition, by agreement combined and tried with a probate proceeding for the construction of a will. Trial to the court and decree in equity for plaintiffs and order in probate construing will.
Affirmed.
R Brown, of Creston, and John L. Sloane, of Des Moines, for appellant Dora Heckmann, by her successor-guardian Geo Heckmann.
John L. Sloane, of Des Moines, for appellant Lana B. Heckmann.
Sidney Johnson, of Granger, and Emmert, James & Lindgren, of Des Moines, for appellee.
Eskil C. Carlson, of Des Moines, guardian ad litem, for Dora Heckmann, appellee.
F. C Heckmann died January 19, 1926, testate, leaving surviving him Lana B. Heckmann, Dora Heckmann, and George Heckmann. His will, dated November 10, 1925, and duly admitted to probate, provides first for the payment of debts and funeral expenses, and second, bequeaths 40 acres of land to his son George. Paragraphs 3 and 4 are as follows:
The land which passed under item 3 of the will consists of 140 acres. The daughter Dora is incompetent, and after her father's death she lived with her sister Lana, who had charge of the farm and also owned a farm of her own which she had purchased prior to the death of her father.
On May 29, 1931, Lana executed and delivered to W. H. Brenton, who later assigned it to the Brenton State Bank, a mortgage on real estate, including the 140-acre farm, " subject to the life estate of Dora Heckmann in and to the undivided one-half interest in and to the * * * 140 acres." This mortgage was foreclosed and decree entered March 8, 1937. Under proceedings on an application to the bankruptcy court under the Frazier-Lemke law, 11 U.S.C.A. § 203, a trustee's deed issued to the Brenton State Bank for the 140-acre farm on November 21, 1938, subject to " whatever interests Dora Heckmann may have in said property under the last will and testament of Fred C. Heckmann."
At the time of the bringing of the present actions unpaid taxes had accumulated to the amount of $1,167.33. On August 26, 1938, the plaintiff in the equity proceeding (the Brenton State Bank) filed its petition in partition, naming as defendants Dora Heckmann, Lana B. Heckmann, guardian of Dora Heckmann, Lana B. Heckmann, William Hungate and Mrs. William Hungate (tenants), and Polk County, Iowa, and asking a decree establishing and determining the rights of the parties, confirming shares and interests; sale of the premises and division of the proceeds; appointment of a referee and receiver; and general equitable relief. Answer was filed by the defendant Lana and the guardian ad litem appointed for Dora. Thereafter, on November 7, 1938, Dora, by Lana her guardian, filed petition asking construction of the will, claiming that the interest of Dora was under a joint tenancy; that on account of personal services required to be rendered by Lana B. Heckmann which had not yet been performed said Lana had not acquired any interest in the land which she could alienate, and that the real estate in controversy constituted a trust. This application on behalf of Dora was resisted by the Brenton State Bank, plaintiff in the equity proceeding. A motion to strike the bank's resistance to the application for interpretation was overruled by the court, and by agreement of parties the two cases were tried at the same time and separate judgment and decree rendered. In the equity proceeding the court found that Lana had the right to and did alienate her interest in the property, and that such alienation could not affect the rights of Dora to have the property held intact as a unit for her benefit. The court further found that Lana had no interest in the property, and that one of the undivided halves of the real estate was devised in fee to Lana and that Dora has no right or title therein nor any charge thereon except the right to have it operated in conjunction with the other undivided one-half interest. By the decree Dora was adjudged to be the owner of a life estate in one undivided one-half, with the right of operation as above stated in conjunction with the other undivided one-half interest, and the right to one-half of the income from the land operated as a whole; and her undivided one-half is also subject to the payment of the expenses of her last sickness and funeral. The decree fixed the ownership in the plaintiff Brenton State Bank of all the balance, residue, and remainder of the real estate, and determined its right to receive during the lifetime of Dora Heckmann, after the payment of one-half the taxes and tax liens, insurance, and repairs, one-half of the income from the land operated as a whole; and after the death of Dora the Brenton State Bank is decreed to be the owner in fee of all the real estate. In the order in the probate proceeding item 3 of the will is construed as devising to Dora Heckmann a life estate in an undivided one-half of the property, with the right to have her undivided one-half operated during her lifetime in conjunction with the other undivided one-half; and a charge was created by the will against the remainder of this undivided one-half in which Dora was given a life estate, for the payment of her last sickness and funeral expenses. The order further construes the will as granting all the balance of the real estate to Lana B. Heckmann.
From the decree in the equity case and judgment in the action to construe will, Lana B. Heckmann, for herself and as guardian, appeals. From that part of the decree giving to Dora Heckmann the right to have her life estate in the undivided one-half operated during her lifetime in conjunction with the other undivided one-half, and the right to receive during her lifetime, after the payment of one-half the operating expense, one-half of the income from the land operated as a whole, and denying sale and division of the proceeds at this time, the Brenton State Bank appeals. For convenience, however, the defendants in the equity case and the plaintiffs in the action for construction of the will will be designated as appellants, and the Brenton State Bank as appellee.
The first ground of objection to the judgment and decree of the court by the appellants is that the court erred in construing and adjudicating the testator's intention to have been merely the creation of a life estate in an undivided one-half of said real estate to Dora. The appellants claim that it was the testator's intention that the two daughters should hold in joint tenancy, and that the will should be construed that the land should go to his two daughters and that neither one or the other could hold any part of it singly; and that the purpose and intent of the testator was so to devise his said real estate as to prevent alienation of the interest of either daughter by herself or by anyone else. Appellants also claim that the court erred in adjudging the title to all of said real estate to be a fee in the daughter Lana. Appellants argue at considerable length that paragraph 3 of the will, heretofore set out, created a joint tenancy. The cases cited by appellants do not bear out this contention, as in the authorities cited the joint tenancy was expressly created and there could be no question as to the nature of the estate. An examination of the two Iowa cases cited indicates the same. Wood, Adm'r, v. Logue, 167 Iowa 436, 149 N.W. 613, Ann.Cas.1917B, 116, involved a deed which by its express provision showed a joint tenancy, the right of survivorship being expressly set out. Stewart v. Todd, 190 Iowa 283, 173 N.W. 619, 180 N.W. 146, 20 A.L.R. 1272, involved a partnership agreement. Neither case sustains the position of the appellants. The appellants' argument is that the use of the word " jointly" created a joint tenancy; but to so hold would be to attach no meaning to the rest of the paragraph. The provision is: " I give and bequeath to my two daughters Lana and Dora jointly in equal shares, that is to say to each an undivided one-half thereof, * * *." The words " to each an undivided one-half thereof" explain just what the testator intended when he devised the land. We think the devise comes within the rule of In re Guardianship of McCauley, 213 Iowa 262, 235 N.W. 738, which discusses the rule of construction of limitation of a fee by a subsequent provision in the will, and lays down the rule that it has no application to a will which in one clause devises property without specifying any particular estate which the devisee shall take, and in a subsequent clause specifies that the devised property shall be placed in trust. See that case and cases cited therein.
The rule in this state is that estates vested in two or more persons are to be deemed tenancies in common unless a...
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