Johnson v. Bodine

• Decision Date: 24 May 1899
• Citation: 79 N.W. 348,108 Iowa 594
• Parties: JOHNSON ET AL. v. BODINE ET AL.
• Court: Iowa Supreme Court

108 Iowa 594

79 N.W. 348

JOHNSON ET AL.

v.BODINE ET AL.

Supreme Court of Iowa.

May 24, 1899.

Appeal from district court, Page county; N. W. Macy, Judge.

Action for the partition of real estate. The trial court established and confirmed the respective interests of the parties, and directed a sale of the property. From that part of the decree fixing the interests of the various parties, defendant Phœbe J. Flint appeals, and from the decree fixing the plaintiffs' interests certain of the defendants appeal. As Phœbe J. Flint first perfected her appeal, she will be called “appellant.” Modified.T. E. Clark and John W. Fisher, for appellant Phœbe J. Flint.

Parslow & Scott, Levant D. Lester, and O. C. Greene, for appellants Nellie J. Bushman and others.

J. E. Hill and John R. Good, for appellees.

DEEMER, J.

C. D. Lester died, testate, seised of the real estate sought to be partitioned, on the 5th day of October, 1885. His will was admitted to probate in November of that year, and contained the following, among other provisions: “Fourth. I do give and bequeath unto my beloved brother Isaac J. Lester one-half of my entire estate, both real and personal, with remainder to my heirs at law, during the life of my said brother; the trust of my brother for his natural life. Fifth. I do give and bequeath unto my beloved brother Garra Kimble Lester the use, income, and profit of one-half of my entire estate, both real and personal, during his natural life. The remainder as hereinafter stated. Sixth. It is my will that at the death of my brothers, Isaac J. Lester and Garra Kimble Lester, that my entire estate, both real and personal, be divided between my heirs at law.” Isaac J. Lester and Garra Kimble Lester, named in the will, both died since the death of the testator, and prior to the commencement of this action. The testator was never married, and his parents departed this life prior to the death of the testator. He left surviving him two brothers, Isaac J. and Garra Kimble, and the issue of three deceased sisters, to wit, Catherine E. Caner, Amy Prime, and Phœbe J. Flint, Sr. Isaac J. Lester left surviving him three children, all of whom were living at the time of the testator's death. The other brother left surviving him four children, who were also living at the time the testator died, and the issue of three other children, who were alive on the 5th of October, 1885. One of these last-named children died after the death of the testator, leaving a husband, but no issue. Another died after the testator's death, leaving a husband and two children. The third of these children was an illegitimate daughter of Garra Kimble Lester. This daughter, who bore the name of Laura J. Johnson, died in the year 1891, leaving four children, each and all of whom were living at the time of the testator's death. It is admitted that Garra Kimble Lester recognized Laura J. Johnson to be his daughter, and that this recognition was in writing, and general and notorious. The husband of Laura J. Johnson also survived her, but he devised all his interest in the testator's property to his children. Catherine Caner, a sister of the testator, who died before the testator, left four children surviving her, and these children were all alive when the testator died. Amy Prime and another sister, who died before the testator, left four children surviving, two of whom died prior to the death of the testator, without issue. Phœbe J. Flint, Sr., also a sister of the testator, died before he did, leaving a son, Garra K. Flint, who also died prior to the time of the testator's death, leaving as his only heir the defendant and appellant Phœbe J. Flint, who is now living, and who is the sole and only representative of this branch of the Lester family. The case involves a construction of that part of the will which we have quoted. On the one side it is insisted that the heirs take per stirpes, and not per capita, and that Phœbe J. Flint is entitled to one-fifth of the property, instead of the one-seventeenth which the trial court awarded her; while on the other hand it is contended that the per capita distribution ordered by the court is correct, and that the decree as to this appellant should be affirmed Again it is insisted that the heirs of the illegitimate daughter of Garra Kimble Lester are not entitled to take under the will, because they could not have inherited from the testator; while counsel representing these parties, who will be designated the “Johnson heirs,” argue that as Lester recognized Laura J. Johnson, during his lifetime, as his child, she and her heirs are entitled to inherit from him to the same extent and in the same manner as if she had been his legitimate child, and that, as they were entitled to inherit from him, they are also entitled to inherit property belonging to his brother, and are therefore entitled to take under the will of C. D. Lester. It will be noticed that the will directs that testator's estate, both real and personal, be divided between his heirs at law. In the recent case of Kling v. Schnellbecker (decided at the present term) 78 N. W. 673, we held that when an estate is to be divided equally between certain persons, whether specifically named, or designated by more general terms, as the children or heirs of certain persons, the language imports the taking of an equal share by each legatee, in the absence of other provisions showing a contrary intention, and that they take per capita, and not per stirpes. It has been truly said, however, that “this rule will yield to a very faint glimpse of a different intention in the context.” See 2 Jarm. Wills (Rand. & T. Ed.) p. 757, and cases cited. But the facts in the Kling Case are so different from those in the case at bar that neither the rule nor its exception applies. Here there is no division into classes, as in that case, and the part...