In re Tolerton's Estate
| Decision Date | 10 February 1915 |
| Docket Number | No. 29543.,29543. |
| Citation | 168 Iowa 677,150 N.W. 1051 |
| Parties | IN RE TOLERTON'S ESTATE. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Black Hawk County; Franklin C. Platt, Judge.
Application for the construction of a trust conveyance. The two daughters, who are the only heirs of the grantor in such conveyance, claim that the writing operated to vest his estate in them. One of the legatees, Cornell College, of Mt. Vernon, claims that it did not, but say that his estate should be distributed as provided by his will. The trial court found in favor of the heirs, holding that the property passed to them under the deed of trust. The college appeals. Affirmed.E. B. Soper, of Emmetsburg, W. H. Merner, of Cedar Falls, and E. A. & W. H. Morling, of Emmetsburg, for appellant.
Howe & Lyon, of Des Moines, and J. B. Newman, of Cedar Falls, for appellees.
Deceased, J. J. Tolerton, was a widower. On May 24, 1911, he executed the trust deed in question, which will be set out later. On March 27, 1912, he executed his will. He died June 8, 1912. The trust was accepted in writing by the trustee May 29, 1911. The estate consisted of real estate and personal property of the value of about $100,000, a part of which is in Black Hawk county, Iowa, and the remainder in South Dakota. The trust conveyance was filed for record, and recorded soon after the execution of the deed, in the counties in this state and South Dakota where the real estate was situated. The trustee qualified and entered into the possession of all the property covered by the trust instrument, and upon the discharge of its duties as trustee, and so continued until the death of the grantor, when it turned over and delivered the property to the administrators of his estate. The daughters petitioned for letters of administration, and such letters were issued to their husbands, who at once qualified and entered upon the discharge of their duties. The will was filed for probate, and the daughters and the administrators filed objections thereto on the ground of mental incapacity of deceased to make a will. Demand was made by the heirs upon the administrators that the property covered by the trust conveyance be delivered to them as their own property, which the administrators refused to do. The heirs then made application for an order to require the administrators to deliver the property to them. Thereupon, the administrators asked the court for instruction and direction in the premises. The claim of the college, as legatee under the will, was denied by the heirs and the administrators. It was stipulated, however, that for the purposes of this case it should be considered that the will had been duly probated. The Methodist Episcopal Church at Cedar Falls, a legatee under the will, is not a party to this controversy and, it appears, has made no claim to its legacy. The personal apparel and household effects excepted from the provisions of the trust deed are not of sufficient value to pay the expenses of administration of the estate and the legacy claimed by Cornell College. The question is, then, whether the heirs take under the trust conveyance the property covered thereby, or whether it was revoked by the will subsequently made; that is to say, whether the trust deed or the will prevails. The trial court decreed that the heirs are the unqualified owners of all the property covered by the trust deed; that the college has no interest therein or thereto; that the administrators are not entitled to said property, or the possession thereof, and directed the administrators to turn the property over to the heirs. It provided, however, that the property not covered by the trust conveyance, belonging to the estate of deceased, now in the possession of the administrators, should not be affected. As to the remedy, no question is raised as to the right of the court to direct the administrators to deliver the property to the heirs.
The trust deed is as follows:
Whereas, the grantor herein is the owner of a certain real and personal property which requires considerable time and attention for its proper management and conduct, and, whereas, said grantor by reason of his age and the condition of his health desires to be free from the burden of such affairs, and, whereas, said grantor further desires at this time to make provision for the disposition of his estate, now, therefore, know all men by these presents: That, I, J. J. Tolerton, of the city of Cedar Falls, in the county of Black Hawk, and state of Iowa, for and in consideration of one dollar ($1.00) and other good and valuable consideration in hand paid, the receipt whereof is hereby acknowledged, do hereby sell, assign, transfer, and convey unto the Cedar Falls Trust Company of Cedar Falls, Iowa, a corporation duly organized and existing under and by virtue of the laws of the state of Iowa, “trustee” and its successors in trust, the following described real and personal property, to wit: The south one-half (1/2) of a certain lot or block of ground in the city of Cedar Falls, in the county of Black Hawk, and state of Iowa, bounded on the north by Tenth (10) street, on the east by Franklin street, on the south by Eleventh (11) street and on the west by Tremont street, also, the northwest one-fourth (1/4) of section fourteen (14), township eighty-nine (89), north of range fourteen (14), west of the 5th P. M. Iowa, except three (3) acres in the northeast corner thereof; also, the west one-half (1/2) and the southeast one-fourth (1/4) of section twenty (20), township one hundred and twenty (120), range forty-nine (49), in the county of Grant, and state of South Dakota; and, also, all money, notes, mortgages, shares of stock in corporations, policies of insurance, both fire and life and the benefits and proceeds thereof or to be derived therefrom, together with all other property, property rights and benefits of whatever kind or character and wherever located, owned or possessed by me, together with all and singular, the rents, issues, dividends and profits thereof, and all other rights appendant and appurtenant in and unto said property, or arising or issuing therefrom, save and except only my personal apparel and household effects.
In trust, however, for the persons and purposes hereinafter named, and appointed, and with the powers and duties hereinafter enumerated and set forth and none other.
To have and to hold, the same unto the said Cedar Falls Trust Company and to its successors in trust for and during the whole of the period hereinafter described and designated as “the trust period.”
Article 1. The trust period above referred to is described and designated as follows: It shall commence upon the execution of these presents and shall continue and exist during the life of this grantor and until an executor or administrator shall have been duly appointed, and shall have qualified as provided by law, as the executor or administrator of the estate of this grantor, and no longer.
Art. 2. (a) During the whole of the trust period aforesaid, said trustee shall have full power and authority, and it shall be its duty to take, possess, and have charge of said trust property, to lease and invest the same, and to demand and receive and receipt for the rents, issues, dividends and profits arising and which may be had therefrom, and to disburse, dispose of, and invest or reinvest such rents, issues, and profits as hereinafter provided.
(b) To bring, maintain and defend actions at law, in equity or otherwise involving, growing out of, or in any maner affecting said property or property rights.
(c) To maintain and improve said property as may be to the best advantage of the trust estate and of the remainder in fee.
(d) To pay all taxes, liens, incumbrances, and claims upon and against said property, or any of it, whether now existing or hereinafter arising or created.
(e) To keep and maintain fire insurance on the buildings on said real estate in a sum equal to sixty-five (65) per cent. of the value of such buildings.
(f) To do any and all acts and things essential and proper in the careful, frugal and business management and conduct of said property.
Art. 3. For and during the life of this grantor the net income from said trust property shall be paid out and disbursed by said trustee as follows:
(a) For the support, maintenance and care of this grantor and to provide him with a reasonable and proper amount of money for his personal needs and for his current religious contributions.
(b) The residue and remainder of such rents, issues, dividends and profits shall be invested by the trustee as authorized and provided by the statutes of the state of Iowa for the investment of trust funds at the best and most advantageous rate of interest obtainable.
Art. 4. At and after my death said trust property shall vest in and become the absolute property of my legal heirs then surviving as provided by the laws of inheritance of the state of Iowa.
Art. 5. Before entering upon the discharge of the duties of trustee provided in this instrument the trustee herein named and its successor or successors in trust, shall give and furnish a good and sufficient bond in the penal sum of twenty thousand dollars ($20,000.00) for the use and benefit of his grantor and the cestuis que trustent under this instrument, with the usual and ordinary covenants for the faithful discharge of the duties and obligations of such trustee, the expense of such bond in the event a surety company bond is given to be borne and paid as an expense of the trust estate.
Art. 6. All personal property coming into the hands of the trustee of the trust estate hereby created shall be receipted for by the trustee on receiving such property, and the trustee shall, when requested by this grantor or either of his children, furnish a full and complete inventory of all the personal property belonging to this estate then in the hands, custody, or control of the trustee and in...
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