Jonas v. Weires
| Citation | 111 N.W. 453,134 Iowa 47 |
| Parties | FRED JONAS, Appellant, v. MICHAEL WEIRES, CRAIG & RAY, G. M. CRAIG and W. F. RAY |
| Decision Date | 09 April 1907 |
| Court | United States State Supreme Court of Iowa |
Appeal from Butler District Court.-- HON. CLIFFORD P. SMITH, Judge.
ACTION in equity to set aside a sheriff's deed to plaintiff's undivided interest in certain real property and to quiet title in plaintiff to such undivided interest as against defendants Craig & Ray, who claim to be owners thereof under such sheriff's deed. Decree for defendants from which plaintiff appeals.-- Affirmed.
Affirmed.
N.W. Scovel and E. P. Andrews, for appellant.
Courtwright & Arbuckle and Geo. M. Craig, for appellees.
In 1886 the father of plaintiff died, leaving a will, hereafter set out, by the terms of which plaintiff was given some interest in a tract of land in Butler county, subject to a life estate in his mother, who survived the testator. Plaintiff, who had resided in Butler county in 1878, and had since that time been a nonresident of the State, returned temporarily to Butler county to attend his father's funeral, and there, on the 16th day of September, 1886, in Jefferson township of that county, was served with notice of an action brought before one Daggett, a justice of the peace in and for West Point township of that county, in which Weires, one of the defendants in this case, sought to recover judgment against him for $ 14.90, with interest, on an open account. This plaintiff made no defense in that action, and judgment was rendered against him by Justice Daggett on the return day for $ 22.10, with costs. A transcript of this judgment having been filed with the clerk of the district court of Butler county, execution was issued March, 1902, upon said judgment, at the request of Weires, and levy was made by the sheriff on the undivided one-fourth interest in the land referred to in plaintiff's father's will, which is the interest he now claims in said land as having accrued to him by virtue of the provisions of the will. On April 1, 1902, the interest thus levied upon as belonging to plaintiff was sold by the sheriff to said Weires for $ 68.37, being the amount of the judgment, with interest and costs; the recital in the sheriff's return of the sale being that he exposed "to sale at public auction the property aforesaid to the highest and best bidder in forties, and, receiving no bids therefor, I then and there offered it as a whole, sold all the above-described real property, to wit, an undivided one-fourth of," etc.-- describing the land. Subsequently Weires assigned his certificate of sale to Craig & Ray, who had been his attorneys in the action before the justice of the peace, and on April 3, 1903, the sheriff made his deed in due form to Craig & Ray, for said undivided one-fourth interest. The grounds relied upon by plaintiff as entitling him to have the deed set aside are: First, that his interest under his father's will was contingent at the time of the levy and sale, and not subject to sale under execution; second, that the justice of the peace rendering the judgment under which the sale was had was without jurisdiction to render such judgment; and, third, that the sale was for a grossly inadequate consideration and fraudulent.
I. The interest of plaintiff in the property accrued to him under the following provisions of his father's will:
(1) I give, devise, and bequeath unto my beloved wife, Sophia Jonas, my entire property, both personal and real, of every kind and nature, during her natural lifetime after first disposing of sufficient to pay all of my just debts.
(2) And that at the death of my beloved wife, all the property devised or bequeathed to her as aforesaid, or so much thereof as may then remain unexpended, I give and bequeath to my four sons, William Jonas, Frederick Jonas, Charles Jonas, and Henry Jonas, to be divided equally between them and to their heirs and assigns forever.
(3) At the death of my beloved wife, and when final settlement of my estate is made, if either of my sons should be indebted to either of the others, I desire that such indebtedness should be paid out of said son's share before his portion is paid over to him.
The contention for plaintiff, with reference to the construction of this will, is that he, being the Frederick Jonas mentioned in the second paragraph thereof, had thereunder only a contingent estate, not subject to sale under execution, and that his interest did not become vested until the death of his mother in March, 1905, which was after the sheriff's sale and deed, and that therefore the levy and sale were invalid. But an examination of the terms of the will leads to a contrary conclusion. The widow took only a life estate, with no power to dispose of the fee save for the payment of testator's debts. As the testator could only dispose by will of his property remaining after the payment of his debts, the practical effect was to give his widow a life estate, and provide for the distribution of the remainder to his four children and their heirs, and the provisions of the will indicate an intention to determine the rights of these four children by the very language of the instrument. There was no contingency remaining to be determined after the death of the widow. True enough, the testator says that, after the death of the widow, the property is given and bequeathed to be equally divided among such children. But such language is to be interpreted as referring to the use and enjoyment, and not to the vesting of the rights, Archer v. Jacobs, 125 Iowa 467, 101 N.W. 195; Shafer v. Tereso, 133 Iowa 342, 110 N.W. 846. If the language of the will had contemplated that only the survivors of the children named should share in the property after the death of the widow, then there would have been a contingent remainder to them, and in that event the rule announced in Taylor v. Taylor, 118 Iowa 407, 92 N.W. 71, that a contingent remainder is not subject to sale under execution, would have been applicable.
But the language of this will does not indicate that only the survivors were to share in the property. Instead of directing the property to be divided between his children or their heirs, as in the Taylor case, the testator here directs that it is to be divided equally between them and their heirs. Even under the rule of construction adopted by the majority in the Taylor case, the will now before us must be construed as creating a vested, and not a contingent, remainder. As is said in that case: "If the gift is immediate, though its enjoyment be postponed, it is vested; but if it is future, and is dependent on some dubious circumstances through which it may be defeated, then it is contingent." And the rule is recognized that "the law leans towards the vesting of remainders." Further, to the effect that the courts will construe an ambiguous provision as creating a vested, rather than a contingent, remainder or an executory devise, see: Archer v. Jacobs, 125 Iowa 467, 101 N.W. 195; Shafer v. Tereso, 133 Iowa 342, 110 N.W. 846; Burleigh v. Clough, 52 N.H. 267 (13 Am. Rep. 23); Rumsey v. Durham, 5 Ind. 71; Doe v. Provoost, 4 Johns. 61 (4 Am. Dec. 249); Moore v. Lyons, 25 Wend. 119; Chapin v. Crow, 147 Ill. 219 (35 N.E. 536, 37 Am. St. Rep. 213). The uncertainty which characterizes a contingent, as distinguished from a vested, remainder, is uncertainty as to the person or the event, and not as to the time of enjoyment. Shafer v. Tereso, supra; Everitt v. Everitt, 29 N.Y. 39, 75; Beatty's Adm'r v. Montgomery's Ex'x, 21 N.J.Eq. 324; Havens v. Sea Shore Land Co., 47 N.J.Eq. 365 (20 A. 497); Manderson v. Lukens, 23 Pa. 31 (62 Am. Dec. 312); Heilman v. Heilman, 129 Ind. 59 (28 N.E. 310); Schuyler v. Hanna, 31 Neb. 307 (47 N.W. 932). If futurity is annexed to the substance of the gift, the vesting is suspended; but, if it appears to relate to time of payment only, the legacy vests instanter, and words directing division or distributing between two or more objects at a future time are equivalent to a direction to pay. In Wilhelm v. Calder, 102 Iowa 342, 71 N.W. 214, the devise was expressly to the children who should be living at a future time, and the conclusion reached in the case In re Crane, 164 N.Y. 71 (58 N.E. 47), is based on a similar construction of the terms which are employed in this will.
The conclusion just indicated, based on the language of the first and second paragraphs of the will, is not affected by the provisions of the third paragraph, expressing a desire that when the other devisees come into enjoyment of their interests at the death of the widow, the indebtedness of any one of them to another is to be paid out of his share before the remainder is turned over to him. Even if this direction created a charge on the interest of one of the devisees in favor of another, it would affect the amount by him to be realized, and not the time of the vesting of his interest. It is an uncertainty as to the person who is to take, and not as to the quantity or value of the interest which he takes, that characterizes a contingent, as distinguished from a vested, remainder. The purchaser would, of course, take it subject to this uncertainty, but he would take whatever the devisee would have taken, and the interest provided for is therefore vested, and not contingent. That it is only uncertainty as to the person who is to take, or as to the event on which the vesting of an interest is made to depend, that prevents a contingent remainder being salable under execution, see: Archer v. Jacobs, 125 Iowa 467, 101 N.W. 195; Taylor v. Taylor, 118 Iowa 407, 415, 92 N.W. 71; Ducker v. Burnham, 146 Ill. 9 (34 N.E. 558, 37 Am. St. Rep. 135); Railsback v. Lovejoy, 116 Ill. 442 (6 N.E. 504). That a vested remainder...
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