Kling v. Schnellbecker

• Decision Date: 05 April 1899
• Citation: 78 N.W. 673,107 Iowa 636
• Parties: KLING v. SCHNELLBECKER ET AL.
• Court: Iowa Supreme Court

107 Iowa 636

78 N.W. 673

KLING

v.SCHNELLBECKER ET AL.

Supreme Court of Iowa.

April 5, 1899.

Appeal from district court, Jasper county; Ben McCoy, Judge.

Proceedings for the construction of the will of Henry Schnellbecker, deceased.The question is whether the devisees take per stirpes or per capita.The trial court found that they took per capita, and John Schnellbecker, one of the devisees, appeals.Affirmed.A. M. Harrah, for appellant.

Geo. C. Kipp and W. G. Clements, for appellees.

DEEMER, J.

The testator died in the year 1894 without direct issue.His wife died about the year 1890, leaving no estate and no direct heirs.At the time of the execution of the will, which was in the summer of 1894, testator had one sister living, who was his only heir.This sister died in the year 1897, leaving appellant, her son, as her only heir.Testator's wife left one brother and two sisters as her only surviving heirs; and they, with Mary Kling, a devisee, are the appellees in this case.The will was admitted to probate in February of the year 1897.After making certain specific bequests, the will read as follows: “All the remainder of my estate must be equally divided between my sister and my wife's sisters and brothers.”A codicil to the will makes the following provision: “This certifies that on the 31st day of May, A. D. 1894, I, Henry Schnellbecker, executed my last will and testament in the presence of Geo. P. Kipp and another witness, whose name I do not remember; and in the said will I make the following bequests, to wit: One hundred dollars each to the three grandchildren of George Phiffer, residing in Germany.This bequest I hereby annul and rescind, and the three hundred dollars must be equally divided between my brothers and sisters and my wife's brothers and sisters, in addition to the amount bequeathed to them in my will of May 31, 1894, and my bequest in said will to Mary B. Kling.I direct that the foregoing be added to my said will when the same is probated.”Appellant contends that the property devised by the will and codicil “should be divided per stirpes, to two classes,--one class being the testator's sister, now represented by her son and only heir, John Schnellbecker; the other class being his deceased wife's two sisters and brother”; while appellee contends, and the trial court found, that it should be divided per capita.While the intention of the testator is the polar star in all inquiries involving the interpretations of wills, yet certain phrases found in such instruments have received a judicial construction which the testator is presumed to have had in mind.One of these canons of construction is that when an estate is devised 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.In other words, they take per capita, and not per stirpes.Smith v. Curtis, 29 N. J. Law, 345;Purnell v. Culbertson, 12 Bush, 369;Johnson v. Knight, 117 N. C. 122, 23 S. E. 92;Pitney v. Brown, 44 Ill. 363;Jackson v. Luquere, 5 Cow. 221;Farmer v. Kimball, 46 N. H. 435;Weston v. Foster, 7 Metc.(Mass.) 297.

Much is made in the argument of the word “between,” and it may be conceded that, strictly speaking, it implies a division between two parties or classes; but the reference may be to more than two parties.Haskell v. Sargent, 113 Mass. 343.When the words “between” and “among” follow the verb “divide,” their general signification is very similar, and in popular use they are synonymous, though “among” connotes a collection, and is never followed by two of any sort, while “between” may be followed by any plural number, and seems to refer to individuals of a class, rather than to the class itself.Senger v....