Luckey v. McCray

• Decision Date: 23 November 1904
• Parties: AMBROSE B. LUCKEY, Appellant, v. LILLIAN MCCRAY, and AUGUSTUS MCCRAY
• Court: Iowa Supreme Court

101 N.W. 516

125 Iowa 691

AMBROSE B. LUCKEY, Appellant, v. LILLIAN MCCRAY, and AUGUSTUS MCCRAY

Supreme Court of Iowa, Des Moines

November 23, 1904

Appeal from Buchanan District Court.--HON. F. C. PLATT, Judge.

ACTION for partition. The plaintiff alleges that he and the defendant Lillian F. McCray, as the only children and heirs at law of one Sophia A. Luckey, are entitled to equal shares in the real estate described in his petition; Augustus McCray, the other defendant, being joined as the husband of Lillian McCray. The defendant Lillian McCray, who will be treated as the sole defendant in this opinion, claims title to nine-tenths of the property--one-tenth in her own right and eight-tenths by conveyance by other heirs of one Caroline M. Luckey, who, as defendant claims, died seized of a fee-simple title thereto--and alleges that plaintiff, as one of the heirs of Caroline M. Luckey, is entitled to only one-tenth of the property. The question whether the title to the property was in Sophia A. Luckey or Caroline M. Luckey depends on the construction of the will of Samuel C. Luckey which will be set out in the opinion. The decree established the claims of defendants, and the plaintiff appeals.

Affirmed.

Lake & Harmon, for appellant.

Springer & Smith, for appellees.

OPINION

MCCLAIN, J.

The real property, the ownership of which is in controversy in this case, belonged at one time in fee simple to Samuel C Luckey, since deceased, and was disposed of in his will which covered all of his property, real and personal, as follows:

First. I give, devise and bequeath to my beloved wife, Caroline M. Luckey, all my estate, both real and personal, in whatever it may consist, or wherever situated, at my decease, to be by her used and disposed of during her natural life, precisely the same as I myself might do were I living; and giving my wife full power to sell, exchange, invest and reinvest the same, in the same manner I might do if living; and to distribute the same by gift or otherwise as she sees fit, at any time during her life, and to appoint the same by will to whomsoever she wishes, according to her own judgment and discretion.

Second. But if any of my said estate shall remain undisposed of by my said wife, at the time of her decease, I give, devise, and bequeath all such residue and remainder of my estate to be equally divided among William Luckey, he being my brother and Sophia A. Luckey, she being my wife's sister; should either William Luckey or Sophia A. Luckey be deceased at the time of the decease of my said wife, Caroline M. Luckey, then and in that...