Jones v. Parsons

• Decision Date: 12 March 1918
• Docket Number: 31899
• Citation: 166 N.W. 707,182 Iowa 1377
• Parties: MAY JONES et al., Appellants, v. HANNAH N. PARSONS, Appellee
• Court: Iowa Supreme Court

166 N.W. 707

182 Iowa 1377

MAY JONES et al., Appellants, v. HANNAH N. PARSONS, Appellee

No. 31899

Supreme Court of Iowa, Des Moines

March 12, 1918

Appeal from Scott District Court.--WILLIAM THEOPHILUS, Judge.

SUIT in partition of real estate. The defendant claims to be the sole owner of the property, and denies the right of the plaintiffs to any participation therein. The question at issue involves the construction of a will. The trial court found for the defendant, and the plaintiffs appeal.

Affirmed.

Helmick & Boudinot, for appellants.

Wilson Grilk & Wilson, for appellee.

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

OPINION

EVANS, J.

I.

The parties all claim under the will of Revilo Noble, a common ancestor of all the parties. The defendant is the daughter of such testator. The plaintiffs are grandchildren, being children of the deceased children of the testator. The will of the testator was executed in June, 1872, and probated in September of the same year. He was survived by four daughters and the children of a deceased son. Paragraph 1 of his will was as follows:

"It is my will that at the time of my decease all honest debts against me together with my funeral expense be fully and honestly paid. The remainder of my property to be divided among my four daughters Caroline R. Taylor Matilda S. Mitchell, Mariah P. Sturges and Hannah R. Noble for their own exclusive right and their children after them and my said daughters have the proceeds of said property for their own benefit to the exclusion of all persons whomsoever."

This paragraph was followed by other paragraphs, which specified the particular property which he assigned to each daughter; also the property which he assigned to the children of his deceased son. Matilda S. Mitchell was one of the daughters of the testator. Paragraph 4 of the will was as follows:

"I give, grant and bequeath unto my second daughter Matilda S. Mitchell for her own benefit during her natural life the profits accruing from the rents of the east forty acres of my eighty acres on Section Two joining Logan's pasture by the said Matilda paying her share of the taxes and keeping the fence in repair, no timber shall be taken off the said forty except for the repairs of fences, also two one hundred dollar government U. States 5-20 bonds, also a note against her husband for four hundred and twenty dollars with the interest thereon, also one fourth of the money after the estate shall be settled. At the death of the said M. S. Mitchell, the property herein willed to her shall go to her nearest blood connection. I hereby constitute and appoint John K. Means trustee of S' property to be managed for the exclusive benefit of the said M. S. Mitchell."

Mrs. Mitchell died in January, 1917, leaving no issue. The defendant, Hannah M. Parsons, is her sole surviving sister. She was not survived by either parent. The plaintiffs, being children of the deceased brother and sisters, claim that they are entitled to take, under the terms of Paragraph 4, as being included in the class "her nearest blood connection." The argument is that the terms descriptive of the class were intended to denote those who were so related to Mrs. Mitchell that they would take her estate by descent, under the statute.

Under our statute, degrees of consanguinity are determined by the rules of the civil law. Code Section 48, Paragraph 24. Paragraph 1 of the will indicates that it was the intention of the testator that Mrs. Mitchell's issue should take the remainder, if issue survived. If children had survived her, there could be no question but that they would be deemed to be "her nearest blood connection," to the exclusion of every other connection. In the absence of children, a surviving parent, if any, would necessarily have been deemed to be "her nearest blood connection." In the absence of a surviving parent, surviving brothers and sisters would take the place. Manifestly, a sister is a nearer blood connection than a nephew or a niece; and this is so even though nephews and nieces may have the same right of inheritance per stirpes as a brother or sister. Such right of inheritance is purely statutory, and does not in any manner change the degree of...