In re Huston's Estate

• Decision Date: 28 September 1937
• Docket Number: 43867.
• Citation: 275 N.W. 149,224 Iowa 420
• Parties: In re HUSTON'S ESTATE. v. HUSTON et al. KINNAIRD
• Court: Iowa Supreme Court

275 N.W. 149

224 Iowa 420

In re HUSTON'S ESTATE.

KINNAIRD v. HUSTON et al.

No. 43867.

Supreme Court of Iowa.

September 28, 1937

Appeal from District Court, Polk County; F. S. Shankland, Judge.

Action to construe the will of Z. T. Huston, deceased. From a judgment against Alice R. Johnson, Francis W. Huston, Anna May Huston, and Mrs. Maud Huston, denying them an interest in the estate, they appeal.

Reversed.

Vernon R. Seeburger, of Des Moines, for plaintiff-appellee W. A Kinnaird, administrator.

Arthur G. Rippey, of Des Moines, for defendants-appellees Mary O Huston and Taylor Huston.

Hamilton & Webster, of Winterset, for defendants-appellees Mary I. Dabney and Earl C. Huston.

Lloyd H. Williams and J. F. Slaninger, of Des Moines, for defendants- appellants Alice R. Johnson, Francis W. Huston, and Anna May Huston.

S. A. Hays, of Winterset, for defendants-appellees Mrs. Maud Huston and Mrs. Maud Huston as executrix of Walter Huston's estate.

KINTZINGER, Justice.

This controversy involves the construction of the last will of Z. T. Huston, who died July 30, 1935. The decedent was married twice, his first wife being Phebe Ann Huston, who died prior to December, 1899. The children surviving that marriage were four, named Robert L. Huston, Mary Huston (now Mary Dabney), Walter Huston, and Earl C. Huston.

Robert L. Huston died in 1912 survived by his widow, Alice (now Alice Johnson), and two children, Francis and Anna May Huston.

Walter Huston died in July, 1931, leaving Mrs. Maud Huston, his widow, and no children surviving.

Z. T. Huston, the testator, was survived by Mary O. Huston, a second wife, Mary Huston Dabney and Earl C. Huston, children by his first wife, and Taylor Huston, a son by his second wife. His last will and testament, hereinafter set out and the subject of this litigation, was probated September 4, 1935.

On December 12, 1899, and prior to his second marriage, Z. T. Huston entered into an antenuptial contract with Oriola Wilson (now know as Mary O. Huston), in contemplation of his marriage to her on December 13, 1899. This contract is also hereinafter set out. To this union was born a son named Taylor Huston, who survived decedent.

The following is a copy of the antenuptial contract entered into between Z. T. Huston and Oriola Wilson:

" Whereas * * * Z. T. Huston, party of the first part and Oriola Wilson party of the second part, are about to enter into a contract of marriage, and

Whereas the party of the first part is now possessed of real and personal property of the value of Ten Thousand Dollars ($10,000.00), which said property has been accumulated by the joint efforts of himself and his deceased wife Phebe Ann Huston, and

Whereas the said Phebe Ann Huston left surviving her the following heirs at law being her children by the said party of the first part Z. T. Huston, to-wit: Robt. L. Huston, Mary A. Dabney, Walter Huston, and Earl C. Huston, and

Whereas it is desired by the parties hereto that, the said last named parties to-wit: Robt. L. Huston, Mary A. Dabney, Walter Huston and Earl C. Huston, after the death of the said Z. T. Huston have together to be equally divided between them one third * * * of all property now owned by said Z. T. Huston,

Now Therefore * * * in consideration of the marriage of the parties hereto, it is hereby agreed * * * as follows:

* * * that in case the party of the second part survives the party of the first part, that there shall be paid by the Executors or Administrators of the first party, as soon as practical after the death of the said first party, as follows:

To R. L. Huston Eight Hundred and Thirty-three and 33/100 dollars.

To Mary A. Dabney Eight Hundred and Thirty-three and 33/100 dollars.

To Walter Huston Eight Hundred and Thirty-three and 33/100 dollars.

To Earl C. Huston Eight Hundred and Thirty-three and 33/100 dollars.

and in case either of the above should die without wife or issue the share of such shall be equally divided among the surviving of them, and in case of the death of either leaving a wife or heirs the share of any such who may so die is to go to such wife or heirs in the manner provided by law .

That after the payment of the said amounts, the said party of the second part is to have one-third of all the remaining property of which the said first party may die seized in full of her distributive share of his estate, and all of the remaining property of said first party, after the payment of the amounts aforesaid and after setting apart to the party of the second part her one-third of the property remaining after making said payments, shall be divided equally among all of the children and heirs at law of the said Z. T. Huston including those above named and all others that may be hereafter born to the parties hereto, provided however that in case of the death of either of said heirs before the death of the said Z. T. Huston, the share of any such shall go to its heirs as provided by law but if any die without wife or issue the share of any such who may so die is to go to the survivors in equal shares per stripes.

Witness our hands this Dec. 12th, 1899.

Zachary T. Huston, First Party

Oriola Wilson, Second Party."

(Duly acknowledged December 12, 1899.)

(Italics ours.)

The following is a copy of the material parts of the last will and testament of Z. T. Huston, executed in August, 1904:

" I. I will and direct that all of my just debts be first paid.

II.

In accordance with the terms of an ante-nuptial contract made and entered into on December 12, A. D. 1899, by and between myself and Oriola Wilson I will and direct that there be first paid to each of my following named children viz: R. L. Huston, Mary I. Dabney, Walter Huston and Earl C. Huston the sum of Eight Hundred Thirty-Three and 33/100 Dollars ($833.33).

III.

After the deduction of the foregoing bequests * * * I give devise and bequeath to my wife Oriola Wilson (Huston) one third in value of my property both real and personal which is to be in lieu of her dower and distributive interest in my estate.

IV.

I will and direct that all of the remainder of my estate be equally divided among my children .

V.

I nominate my son Robert L. Huston as Executor of this my last will and testament * * *.

* * * signed * * * this 13th day of August A. D. 1904 at Winterset, Iowa.

Z. T. Huston."

(Italics ours.)

In January, 1921, he made the following Codicil:

" * * * On account * * * of the death of my said son, Robert L. Huston, I now and hereby * * * appoint my * * * son, Walter Huston, and Gaylord H. Huston, * * * as Executors of my said last will * * *.

Witness my hand * * * this 31st day of January A. D. 1921.

Z. T. Huston."

This action was brought by the administrator for the construction of said will. The administrator, Mary Huston Dabney, Earl C. Huston, and Taylor Huston, the surviving children of Z. T. Huston, contend that such surviving children are entitled to all of the remainder of the estate referred to in paragraph 4 of the will. They also claim to be entitled to the specific bequests given to Robert L. Huston and Walter Huston under paragraph 2 of the will.

The lower court held that Mary Huston Dabney, Earl C. Huston, and the heirs of Robert L. Huston and Walter Huston were each entitled to $833.33 as provided in paragraph 2 of the will.

The court also held that Mary Huston Dabney, Earl C. Huston, and Taylor Huston, surviving children of Z. T. Huston, were entitled to the entire remainder of decedent's estate referred to in paragraph 4 of the will. The court also held that Alice R. Johnson, Francis W. Huston, and Anna May Huston, widow and children, respectively, of Robert L. Huston, and Mrs. Maud Huston, widow of Walter Huston, acquired no interest in the remainder of decedent's estate.

From a judgment entered on the latter ruling, they appeal.

Appellees, the surviving children of decedent, contend that the provisions of paragraph 4 of the will which " directs that all the remainder of his estate be equally divided among his children," create a class and that this class consists only of the surviving children of decedent, and that under this paragraph the heirs of Robert L. Huston and Walter Huston, the predeceased children of Z. T. Huston, acquire no interest in the remainder of decedent's estate referred to in said paragraph 4.

It is the well-known rule of law in this and most other jurisdictions that unless a contrary intent is indicated by a will, a devise to a class includes only such members as are living at the time of the testator's death, when the will takes effect. This is the unanimous holding of the cases in Iowa, and the rule has been so often expressed, that it is hardly necessary to cite any authorities in support thereof; however, we cite the following: Downing v. Nicholson, 115 Iowa 493, 88 N.W. 1064, 91 Am.St.Rep. 175; Parish v. Welton, 194 Iowa 1274, 190 N.W. 947; In re Estate of Carter, 203 Iowa 603, 213 N.W. 392; Friederichs v. Friederichs, 205 Iowa 505, 218 N.W. 271.

In Downing v. Nicholson, 115 Iowa 493, loc. cit. 496 88 N.W. 1064, 1065, 91 Am.St.Rep. 175, this court said: " Since a will speaks from the day of the testator's death, the members of the class, where the devise is to a class, are prima facie to be determined upon the death of the testator. * * * But this is not an unyielding rule, even at common law. The will itself may indicate a contrary intent, and if that be so this intent will be adopted and enforced . * * * Under the common-law rule, the members of the class to whom testator left his residue estate would be determined upon the day of his death; * * * but that, like all other rules on the subject, it must yield to the intent of the testator when that can be...