McAllister v. McAllister

• Decision Date: 01 April 1918
• Docket Number: 31904
• Citation: 167 N.W. 78,183 Iowa 245
• Parties: FANNIE S. MCALLISTER, Appellee, v. JOHN H. MCALLISTER et al., Appellants
• Court: Iowa Supreme Court

167 N.W. 78

183 Iowa 245

FANNIE S. MCALLISTER, Appellee, v. JOHN H. MCALLISTER et al., Appellants

No. 31904

Supreme Court of Iowa, Des Moines

April 1, 1918

Appeal from Clay District Court.--D. F. COYLE, Judge.

SUIT in partition resulted in a decree finding that plaintiff was owner of 5/8 of the realty involved, Sue A. McAllister, 1/4 John A. McAllister, 1/16, Edward A. Mechling, 1/32, and Milo Miller, 1/32 thereof.All the defendants appeal.

Affirmed.

Frank O. Campe, Heald & Cook, J. P. Goble, F. F. Faville, Charles H. Wright, and J. W. Cory & Son, for appellants.

Buck & Kirkpatrick, for appellee.

H Chamberlain, guardian ad litem for unknown heirs, etc.

LADDJ. PRESTON, C. J., EVANS and GAYNOR, JJ., concur.

OPINION

LADD, J.

Charles McAllister died testate, July 20, 1913, leaving him surviving as widow, Fannie S. McAllister, and no descendants.His will was admitted to probate, and by its terms gave his widow the family residence and certain bank stock, and the residue of his estate to his "wife, Fannie S. McAllister, and son Alexander McAllister in equal portions, that is, one half of the residue of my estate to each."Alexander was his only child, the mother of whom, Laura McAllister, had departed this life many years previous.Alexander died, May 13, 1912, leaving surviving him his widow, Sue A. McAllister, and one child, who departed this life May 26, 1912.

The mother of Alexander left no heirs.John H. and George H. McAllister are sons of a brother of testator's George has assigned his interest in the estate to John H. McAllister.Elbertine Miller is the granddaughter, and her brother, Milo Miller, the grandson, of another brother of testator's.The latter disappeared in 1906, and has not been heard from since.Elbertine Miller assigned her interest in the estate to Edward A. Mechling.These are all the heirs of testator, and our task is to ascertain the shares in the estate to which each is entitled.

I. Sue A. McAllister survived the devisee, Alexander A. McAllister, as widow, and she complains of the ruling of the court that she was not entitled to one half of the devise, to said predeceased devisee, the same as though he had outlived the testator and been seized of the estate devised at the time of his death.This decision was in accord with the prior construction of Section 3281 of the Code, which declares that:

"If a devisee die before the testator, his heirs shall inherit the property devised to him unless from the terms of the will a contrary intent is manifest."

Nothing to the contrary appeared in the will.Though the devise passes to the heirs of the devisee, they take directly from the testator, and not through the devisee.In re Hulett's Estate, 121 Iowa 423, 96 N.W. 952.In the absence of such a statute, such a devise must have lapsed, and been disposed of as intestate property.This statute was enacted to obviate that result, and to substitute in place of the devisee those persons "who would presumably have enjoyed the benefits of such devise had the devisee survived the death of the testator and died immediately afterwards."In view of this benevolent design, it would seem that the widow of the devisee might have been accorded the position of heir; but, in construing this statute, the court held otherwise, in Blackman v. Wadsworth, 65 Iowa 80, 21 N.W. 190.That decision was followed in In re Estate of Freeman, 146 Iowa 38, 124 N.W. 804.This was in harmony with Braun v. Mathieson, 139 Iowa 409, 116 N.W. 789, Kuhn v. Kuhn, 125 Iowa 449, 101 N.W. 151, Phillips v. Carpenter, 79 Iowa 600, 44 N.W. 898, Rausch v. Moore, 48 Iowa 611, and somewhat inconsistent with Smith v. Zuckmeyer, 53 Iowa 14, 3 N.W. 782, andWilcke v. Wilcke, 102 Iowa 173, 71 N.W. 201, deciding that, where the husband dies intestate, without issue, the widow is heir to one sixth of his estate,--that is, the difference between the one-third dower interest and the one half taken under Section 3379 of the Code, which provides that:

"If the intestate leaves no issue, one half of the estate shall go to the parents, and the other half to the spouse; if no spouse, the whole shall go to the parents."

This last statute is held to be inclusive of the widow's third, or dower interest (Burns v. Keas, 21 Iowa 257); and, though she takes the third as dower, and in accord with Sections 3366and3376 of the Code, the additional sixth passes to her as an heir, and is, therefore, subject to the indebtedness of the husband.The ruling of Blackman v. Wadsworth, supra, was in the light of most of these holdings, as well as McMenomy v. McMenomy, 22 Iowa 148, and Will of Overdieck, 50 Iowa 244, which were regarded as in accord therewith.The court may have been influenced by the thought that the heirs of the predeceased devisee take their interest under the will, directly from the testator, and concluded that the heirs intended were those of consanguinity,--were it not for a prior decision (Moore v. Weaver, 53 Iowa 11, 3 N.W. 741), holding otherwise.In any event, the opinion holding the widow not an heir ought not to be disturbed, after the lapse of so many years.The decision has stood unchallenged for over 30 years, during which time the general assembly has been in session many times, and the statutes of the state revised, without changing the section to mean otherwise than stated in this opinion; and it may well be assumed that the legislative branch of the government is content with the construction excluding the widow of a predeceased devisee from the word "heirs," as found in Section 3281 of the Code.Enlarging her share in her deceased husband's estate, as was done by the thirty-fifth general assembly, does not obviate the conclusion.SeeSection 3379, Code Supplement, 1913.

II.Appellants other than Sue A. McAllister contend that the former decree construing the will limits and defines the plaintiff's interest in the property in controversy, and necessarily excludes anything she might take as heir of the devisee.The executors under the will applied to the court in probate for a construction of the will, on which there appeared an endorsement, as well as an erasure; and the court found that:

"The portion inserted in said will in longhand, being the following words, to wit: 'canceled June 21, 1912, because Alexander McAllister, my son, died May 13, 1912, and his only surviving son May 26, 1912,' has never been witnessed in the same manner as the making of a new will, and that the same is of no force and effect under the laws of the state of Iowa, and that the same cannot be considered as any part of the will of said decedent."

The court further found:

"That the typewritten portion of said will in the third paragraph thereof, which contains the following words, to wit, 'A son, Alexander McAllister, equal portions, that his half of the residue of my estate,' through which lines have been run with a pen and ink, is still intelligible, and can be read through said lines.And it is therefore found by the court that said will is not affected by the running of said lines through said portion thereof."

The court then adjudged that:

"The said will shall be considered and construed as it was originally written, signed, and witnessed, and without reference to the said attempted changes in the wording thereof, and that said will shall stand and be, for all intents and purposes, the same as originally written, executed, and witnessed.And the court, having further examined the said will with reference to the disposition of the residuary estate thereunder, finds that one half of the said residuary estate shall go to and become the property of Fannie S. McAllister, widow of deceased, absolutely.And it appearing to the court that Alexander McAllister, son of said deceased, has died before the deceased of the said testator, and that one half of said residuary estate was devised and bequeathed to the said son, it is therefore ordered, adjudged, and decreed by the court that the said one half of the residuary estate which was devised to the said son under the terms of said will, will go to and become the property of the heirs of said Alexander McAllister, in pursuance of the statutes in such cases made and provided.And it is therefore ordered by the court that the said heirs of said son shall inherit the property devised to him under said will."

The manifest design of this decree was, first, to ascertain whether the attempted cancellation and erasure had been effective in eliminating the devise to the deceased son, and, having found these ineffective, to determine, in a general way, the division to be made of the property under the terms of the will; and the court found that the one half would go to the widow, instead of all, as would have happened had the cancellation or erasure been effective, and the half left to Alexander, to his heirs, and did not undertake to determine who were the heirs of Alexander McAllister, nor to ascertain whether the widow of the testator was such heir or not.This being so, the decree interposed no obstacle to ascertaining in this suit who were the heirs, and awarding to each, including the widow of testator, the portion to which he is entitled.

Ward v. Congregational Church, 66 Vt. 490(29 A. 770), is not an authority to the contrary.There, the estate had been settled, and the order of distribution had given complainant a life estate in the property.Subsequently, in a suit in equity, she sought to be declared to be absolute owner; and the court held the order or judgment in probate res adjudicata, saying:

"It was the province of the court...