International Harvester Co. of America v. Bye

• Decision Date: 19 November 1918
• Docket Number: 32272
• Citation: 169 N.W. 382,184 Iowa 1053
• Parties: INTERNATIONAL HARVESTER COMPANY OF AMERICA, Appellant, v. SELMER BYE, ADMINISTRATOR, et al., Appellees
• Court: Iowa Supreme Court

169 N.W. 382

184 Iowa 1053

INTERNATIONAL HARVESTER COMPANY OF AMERICA, Appellant, v. SELMER BYE, ADMINISTRATOR, et al., Appellees

No. 32272

Supreme Court of Iowa, Des Moines

November 19, 1918

Appeal from Cerro Gordo District Court.--JOSEPH J. CLARK, Judge.

SUIT to have construed a clause in the will of John Bye, devising "my homestead property." On hearing, this was held to pass the entire farm, rather than the 40 acres on which the dwelling was located. The plaintiff appeals.

Affirmed.

Senneff Bliss, Witwer & Senneff, and Victor A. Remy, for appellant.

T. A Kingland and J. F. D. Meighen, for appellees.

LADD J. PRESTON, C. J., EVANS and STEVENS, JJ., concur.

OPINION

LADD, J.

On November 4, 1914, the plaintiff herein recovered judgment against John Bye, Jr., for $ 2,800.60 and costs, and on October 26, 1915, obtained another judgment against him for $ 820.95 and costs. These judgments were obtained in the district court of Winnebago County, and therein levies of writs of attachment on said Bye's undivided interest in the south half of Section 8 in Township 100 North, of Range 23 West of the Fifth P. M., in Winnebago County, were sustained and confirmed. There being doubt as to whether the judgment defendant had any interest in said land, this suit was instituted to have the will under which he took, if at all, construed. It appears that John Bye, Sr., died testate, June 6, 1914, leaving him surviving a widow and eight children, including John Bye, Jr. His will, dated March 18, 1903, duly admitted to probate, gave his wife, in Paragraph 1, all personal property, and gave to his "said wife, Julia Bye, my homestead property to be her property absolutely in fee simple." She was given, in the second paragraph, "the possession of and rents and profits of the remainder of all real estate that I may be possessed of as long as my said wife is living." The third paragraph reads:

"Upon the death of my said wife, I direct that the real estate herein mentioned, except the homestead and any property not heretofore disposed of, shall be divided equally among my children share and share alike."

It then directed the appointment of his wife as executrix.

John Bye, Sr., died seized of the half section of land above described, and had resided thereon with his family, since and long before the making of his will. At the time the will was made, he also owned 160 acres in an adjoining section, but sold that to one of his sons, in 1913. He had some land in North Dakota at the time of his death. The precise issue is whether the words, "my homestead property," contained in the first paragraph of the will, should be construed as referring to the entire half section where decedent lived so long, or merely to the 40 acres on which the dwelling house and buildings appurtenant thereto were located. It will be noted that the subject of the devise is not described otherwise than as "my homestead property," and the introduction of extrinsic evidence was essential for its identification. That such evidence was admissible appears from Whitehouse v. Whitehouse, 136 Iowa 165, 113 N.W. 759, and Ellsworth College v. Carleton, 178 Iowa 845, 160 N.W. 222. As observed in the last case:

"The intent of the testator is to be ascertained from the terms of the will, in connection with other legitimate sources of information, and, when ascertained, will, in the absence of some insurmountable obstacle, be carried into effect."

In ascertaining what the testator meant by "my homestead property," all facts may be shown which bear thereon. As remarked in 4 Wigmore on Evidence, Section 2470:

"Once freed from the primitive formalism which views the document as a self-contained and self-operative formula, we can fully appreciate the modern principle that the words of a document are never anything but indices to extrinsic things, and that, therefore, all the circumstances must be considered which go to make clear the sense of the words,--that is, their associations with things. In the field of wills, where there is none but the individual standard of meaning to be considered, this principle is seen in unrestricted operation; and its full sanction has often been judicially avowed."

In cases like this, evidence of decedent's ownership of different tracts of land, which he occupied with his family, the nature and plan of the improvements, how and when he acquired it, his habit in referring to it, and the like, may be considered; and all this, not to alter, but to enable the court to interpret, the language of the will. See 4 Wigmore on Evidence, Sections 2467, 2471; 1 Underhill on Wills, Section 211.

Decedent acquired the SE1/4 of said Section 8, July 17, 1876, and the SW1/4 thereof, June 8, 1888. A public highway extends along the east and south line of the farm, which was operated in its entirety as a stock and dairy farm. It was cross-fenced, but not on the quarter or quarter quarter section lines. The house was near the center of the east line, and such in size as was suitable for a farm of the acreage of this,--containing ten rooms. At the date of the will, there was a granary near the house, with capacity of 3,000 bushels; a barn large enough for 100 tons of hay and 50 or 60 cattle and 14 horses; a machine shed, and the like; and later on, the outbuildings were reconstructed on a larger scale. A large grove to the north of the buildings served as a wind-break. From 1892 on, decedent kept from 50 to 100 head of cattle, 14 to 19 horses, and many hogs, and he had sheep, when he died. There was but the one set of buildings. Apparently, no part thereof had ever been handled apart and distinct from the rest of the farm, nor had decedent caused a homestead to be platted, as the statute permitted. He was of Norwegian descent, and does not appear to have had occasion to deal with the word "homestead" in its technical meaning, as exempt property. Neither the improvements nor their location indicated any thought that a 40 acres had ever been contemplated as constituting a homestead exemption. The improvements were for the entire farm. The 40-acre tract was not separately fenced, platted, or occupied. The improvements were not suitable for so small a tract, but were such as required by the half section. Because of these facts, it is extremely unlikely that a homestead such as defined to be exempt from judicial sale, and for the conveyance of which certain restrictions are prescribed, and limited in acres, outside of a municipality, to 40 acres, was intended. There is better reason for saying that the word "homestead" was employed in the will in a popular or descriptive sense. As suggested by counsel for appellant, the word "property," whether it refer to a right in a thing or to the thing itself, is a generic term of extensive application.

"Property is nomen generalissimum, and extends to every species of valuable right and interest, including real and personal property, easements, franchises, and other incorporeal hereditaments." 19 Am. & Eng. Encyc. of Law (1st Ed.) 284.

When unrestricted, "property" includes every class of property which a man can own; but it is...