Kiene v. Gmehle

• Decision Date: 19 May 1892
• Citation: 52 N.W. 232,85 Iowa 312
• Parties: KIENE v. GMEHLE ET AL.
• Court: Iowa Supreme Court

85 Iowa 312

52 N.W. 232

KIENE

v.GMEHLE ET AL.

Supreme Court of Iowa.

May 19, 1892.

Appeal from district court, Dubuque county; D. J. LINEHAN, Judge.

Action in equity to forclose two mortgages on certain real estate given by the defendants Emilie Gmehle and Gottfried Gmehle, her husband. Frederick Mack Gmehle, a minor, being made a defendant, as claiming an interest in the mortgaged property, answered by his guardian ad litem, claiming to be the owner of said real estate under the will of his grandfather, Jacob F. Mack, deceased, subject only to the life estate of his mother, the defendant Emilie Gmehle, and setting out said will. Plaintiff demurred to the answer, “and as grounds of demurrer states that the said will as pleaded gave the said Emilie Gmehle an absolute estate in fee simple in the mortgaged property, and the said Frederick Mack Gmehle took no interest in the same.” This demurrer being overruled, and the plaintiff refusing to further plead, his petition was dismissed as to the defendant Frederick Mack Gmehle. Plaintiff appeals.Alphons Matthews and Powers & Lacy, for appellant.

Henry Michel, for appellee.

GIVEN, J.

1. Jacob F. and Maria Mack, husband and wife, being seised of separate estates, joined in executing their last will and testament as follows: “We, Jacob F. Mack and Maria Mack, of the city of Dubuque, in the county of Dubuque and state of Iowa, being seised of separate estates, and being mutually desirous of providing for the disposal of the same in the event of our decease, and to provide for the control and enjoyment of the same during the lifetime of the survivor of us, and being of sound and disposing mind, do hereby make and declare this to be our last will and testament of each of us, the same as if separately written for each. First. After first paying the debts which may exist against the first decedent, including funeral expenses and of last sickness, the estate of such decedent, both real and personal, shall descend to and vest in the survivor, to have and to hold the same for life, and to have and enjoy the rents, issues, and income thereof for and during the lifetime of such survivor, to his or her own use. Second. On the demise of the survivor, the whole of the estate of both of said parties, after paying the debts which may then exist against the last decedent, and including funeral expenses and the last sickness of such decedent, out of the separate estate of such decedent, shall descend to and vest in Emilie, the daughter of these testators, for and during her lifetime, to have and to enjoy the rents, issues, and profits and income of the whole of said estate, real and personal, to her separate use and benefit for and during the term of her natural lifetime, and on her demise the said estate, both real and personal, shall descend to and vest in such heirs of her body begotten, in fee simple. Third. In case our said daughter, Emilie, shall die leaving neither of us surviving her, and without heirs of her body begotten, or in case shall survive the survivor of us, and shall die upon entering upon the enjoyment of said estate for life, as before provided, without leaving any such heirs of her body begotten as aforesaid, then on her demise said estate shall descend to and vest in equal parts to the heirs at law of said testators, the one equal half of said estate to the heirs at law of each of said testators in fee simple. Fourth. We, the said testators, do hereby grant, devise, and bequeath such estates as we may die seised of, both real and personal, to the persons named and designated in this will, and in accordance with the foregoing and preceding terms and conditions for descent thereof. Fifth. In case our said daughter, Emilie, shall survive the survivor of us, and enter upon the enjoyment of said estate, we do hereby appoint her sole executrix of this our last will and testament, and of the survivor of us, and desire letters granted to her without any security. Witness our hands, at Dubuque, this sixteenth day of June, A. D. 1871. [Signed] JACOB F. MACK. MARIA MACK. In presence of JAMES BURT. JOHN P. BURT.” Jacob F. Mack, the survivor, died in 1876, seised of the property in question. The defendant Frederick Mack Gmehle, is the son and only heir of Emilie Gmehle “of her body begotten.”

2. The question to be determined is whether by this will Mrs. Gmehle took an estate in fee simple or a life estate in the mortgaged property. If the former, the demurrer should have been sustained; if the latter, it was properly overruled. It is alleged that Jacob F. Mack died seised in fee simple of this property. The question before us is not affected by the provisions...