In re Whittaker's Estate

• Decision Date: 10 April 1916
• Docket Number: 30388
• Parties: IN RE ESTATE OF ANN E. WHITTAKER, Deceased. v. EDWARD F. COTTER, Administrator, et al., Appellees. HAZEL WHITTAKER et al., Appellants, JULIA MARTHA SANFORD, Appellee, v. ROY WHITTAKER et al., Appellants
• Court: Iowa Supreme Court

157 N.W. 135

175 Iowa 718

IN RE ESTATE OF ANN E. WHITTAKER, Deceased.

HAZEL WHITTAKER et al., Appellants, v. EDWARD F. COTTER, Administrator, et al., Appellees.

JULIA MARTHA SANFORD, Appellee, v. ROY WHITTAKER et al., Appellants

No. 30388

Supreme Court of Iowa, Des Moines

April 10, 1916

Appeal from Pottawattamie District Court.--E. B. WOODRUFF, Judge.

ACTION to construe a will.

Affirmed.

Earl R Ferguson and C. R. Barnes, for appellants.

John M Galvin, for appellees.

GAYNOR J. EVANS, C. J., LADD and SALINGER, JJ., concur.

OPINION

GAYNOR, J.

A determination of this appeal involves the consideration of two separate proceedings. The first grows out of the report of the executor of the estate of Ann E. Whittaker, in which is prayed for and given a construction of a will executed by her. The construction given is complained of by appellants, Hazel Whittaker and Roy Whittaker. The second proceeding involves the partition of the real estate left by Ann E. Whittaker, and also involves a construction of the same will, in so far as it affects the distribution of the proceeds of the property partitioned and sold.

In the probate proceedings, as well as in the partition suit, Julia Martha Sanford claimed that, under the will, she was entitled to one half of the property left by decedent, and that Roy Whittaker, Hazel Whittaker and Charles F. Sanford were entitled to the other half, each to an undivided one sixth. The appellants, Roy Whittaker and Hazel Whittaker, in both proceedings deny that Julia Martha Sanford is the owner of one half of the said estate under the will, and claim that Roy and Hazel Whittaker and Charles F. Sanford are each entitled to one fourth of said estate; that Julia Martha Sanford was either not entitled to any portion of said estate, because of the indefiniteness in the will, or that she was entitled to only one fourth, or an equal share with the other persons named in the will.

There is no controversy as to the relationship of each of the parties to Ann E. Whittaker, the testatrix. Julia Martha Sanford is the only surviving child of the testatrix. Charles F. Sanford is the son of Julia. The appellants, Roy Whittaker and Hazel Whittaker, are respectively the son and daughter of William W. Whittaker, a son of Ann E. Whittaker's, who died prior to the making of the will.

Ann E. Whittaker, the testatrix, died in Council Bluffs in the year 1903, and at the time of her death was a widow. She left surviving her Julia Martha Sanford and the three grandchildren hereinbefore named. At the time of her death, she left a will, which was executed on the 11th day of April, 1903, and was duly admitted to probate. By the terms of her will, she disposed of all her property to the parties named in the will. The grandchildren are not named in the will, but are spoken of as children of her daughter and her deceased son. The will is in the following language, and duly witnessed:

"I, Ann E. Whittaker, being of sound mind and aware of the uncertainties of life hereby declare this to be my last will and testament. First, I wish and hereby grant unto my daughter, Julia Martha Sanford, an equal portion of all of my property both real and personal which I may die seized. The same to be paid over to her as soon as possible after my death. The balance of all my property real and personal to be given share and share alike to her children and to the children of William W. Whittaker, deceased, when they are 26 years of age. The income to be divided yearly among them for their support and comfort. My household furniture, wearing apparel and jewelry to be divided among my relatives as directed by my sister Naomi. Second. Should my daughter, Julia Martha Sanford, not survive me then her share to go to the children as above directed. I hereby appoint my sister Naomi Dewey and my sister Emily R. Rishton my sole executors without bond with power to sell and convey property either real or personal. Either of my said executors to act either jointly or separately and in either case their acts to be legal and good as hereby directed by me. My said executors to pay first all my debts and funeral expenses including doctors' bills and erect a shaft to cost about $ 100 at my grave to mark the resting place of myself and son."

The only question here under this will is, What portion of the estate passed to Julia Martha Sanford? Having determined that question, the interests of the other parties become fixed by the wording of the will itself.

It is...