In re Miller's Estate
| Decision Date | 09 March 1909 |
| Citation | 119 N.W. 977,142 Iowa 563 |
| Parties | In the Matter of the Estate of ELIZABETH MILLER, Deceased. Application for construction of Will |
| Court | Iowa Supreme Court |
REHEARING DENIED WEDNESDAY, MAY 12, 1909.
Appeal from Polk District Court.--HON. W. H. MCHENRY, Judge.
THIS is a proceeding to construe item 7 of the will of Elizabeth Miller. From the decree of the lower court, Frank Linaberry devisee named in such item, appeals.--Affirmed.
Decree affirmed.
C. C Cole, for appellant.
Charles Hutchinson, for appellees, minor residuary legatees.
P. P Pinkerton, for appellees, other residuary legatees.
W. L. Ryan, for appellees, executors.
This is a proceeding brought by the executors of the will of Elizabeth Miller, deceased, asking for a construction of item 7 thereof, which item is as follows: The testator was at one time the absolute owner in fee simple of all of said lot 2. Prior to making the will she had sold the south sixty feet of such lot to one Mrs. Dey by written contract of sale, which provided for payment of the purchase price by installments, to be paid monthly for a period of years. This contract was in full force and effect at the time of her death and ever since. The question at issue between the contending parties is whether Frank Linaberry, the devisee under item 7, takes thereunder the benefits and proceeds of the land contract referred to, or whether the same are to be deemed as a part of the residuary estate. The facts, in brief, are that in 1903 Mrs. Miller entered into a written contract of sale with Mrs. Dey, whereby the one agreed to sell, and the other agreed to buy, the south sixty feet of the lot in question for a consideration of $ 1,900, to be paid in installments, namely, $ 500 cash at the time of the execution of the contract, and $ 15 per month thereafter; the purchaser to pay all future assessments and taxes on the property and to have immediate possession thereof, and to pay six percent interest on deferred payments. It was also provided that whenever the principal sum was reduced to $ 950 the purchaser should be entitled to a warranty deed and should execute back a mortgage for the balance of the purchase money, payable with six percent interest at a future date. Time was made of the essence of the contract. In pursuance of the contract the purchaser entered into possession and has never been in default in any payment. The will of testator was executed on September 24, 1907. She died on October 20, 1907. The land contract in question is not specifically mentioned in any item of the will. The will itself contains a residuary clause, and four persons are named as residuary legatees, of which the appellant is not one.
It is contended on behalf of appellant that, inasmuch as the testatrix at the time of her death held the legal title to all of lot two, the entire lot passed to him under item 7 subject only to the rights of Mrs. Dey. It will be observed that the rights of the devisee in this respect depend upon the question whether the interest of the testatrix under the land contract was "land" or personal property within the meaning of the law. It is argued that, because the testatrix held the legal title, her property was necessarily an interest in real estate, and therefore "land," and that because the possession of Mrs. Dey was under the contract with the testatrix, and in pursuance thereof, it was subordinate to the rights of the testatrix, and therefore was the constructive possession of the testatrix, and that such possession constituted "seisin"...
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