McClain v. Capper

• Decision Date: 13 May 1896
• Citation: 67 N.W. 102,98 Iowa 145
• Parties: MARY E. MCCLAIN, Appellant, v. LUCINDA CAPPER, et al
• Court: Iowa Supreme Court

67 N.W. 102

98 Iowa 145

MARY E. MCCLAIN, Appellant, v. LUCINDA CAPPER, et al

Supreme Court of Iowa, Des Moines

May 13, 1896

Appeal from Mahaska District Court.--HON. A. R. DEWEY, Judge.

ACTION for the partition of real estate. The ascertainment of the respective interests involves the construction of a will. John Capper died testate in Mahaska county, Iowa in 1867, and his will was in November of that year admitted to probate. The following are three paragraphs of his will: "First. I will and declare that, as soon after my death as practicable, my just debts and funeral expenses be paid, and that a certain tract of land, containing four (4) acres described in a deed from John S. Henry to John Capper, dated June 16th, 1853, and recorded on pages 10 and 11, vol. E. of the Records of Mahaska County, Iowa be sold. Second. I will and bequeath to my beloved wife, during the minority of my children, the entire use and benefit of my real estate, for the purpose of supporting and educating my children; and when my youngest child arrives at full age, I desire that the real estate (after my wife's dower interest is set off to her herein) be equally divided between my children, viz. Margaret Jane, Rose Ann, Oscar S., Flora E., Harvey M., and John K., their heirs, or survivors of them. Third. I will and bequeath to my daughter Mary Elizabeth, who resides in the state of Indiana,--she having been raised by her grandfather,--the sum of twenty-five dollars, to be paid to her by my executor on final settlement of my estate; and, if there is not a sufficient personal estate to pay said legacy the same to be paid out of my real estate." Mary Elizabeth, mentioned in the third paragraph, is the plaintiff, and daughter of the testator by a former wife, as was also Margaret Jane, mentioned in the second paragraph. Lucinda Capper is the surviving widow of the testator. The other defendants are the children of the testator and Lucinda Capper. It will be observed that the will gives to the plaintiff twenty-five dollars, but no interest in the real estate. Margaret Jane, who is one of the devisees of the real estate, died testate in 1869; giving, by her will all her property to the plaintiff. The youngest child of the testator is of full age, and the real estate, under the provisions of the will, is for distribution. Plaintiff brings this action for partition, claiming an interest of one-seventh of two-thirds because of the devise to her from Margaret Jane Capper. In her petition she recites the facts as to the interest of each, on the basis of her interest as above stated, and she asks a confirmation thereof, and for partition accordingly. To the petition the defendants filed a general demurrer, which the court overruled. Thereupon the defendants answered, and to the answers there was a reply. Upon the issues presented the cause proceeded to trial. At the close of plaintiff's evidence, the defendants moved for judgment in their favor, on the ground that the undisputed evidence showed that the plaintiff had no interest in the land, whatever, which motion the court sustained, and from the judgment the plaintiff appealed.

Affirmed.

W. W. Haskell and Liston McMillen for appellant.

L. C. Blanchard for appellees.

OPINION

GRANGER, J.

I.

The ruling on the demurrer, by which the petition was held insufficient, was made by Judge Ryan, in December, 1894. The trial in which the judgment for defendants was entered, on motion, was had in February, 1895, before Judge Dewey. The evidence in the case was merely to prove the facts in the petition, and there seems to be a practical concession that the ruling on the motion for judgment was based on the conclusion that the petition did not show plaintiff to have any interest in the land, because of the provisions of the will in favor of Margaret Jane Capper.

II. It is said that this court is without jurisdiction to consider the merits of this case, because the ordinary forms of procedure were not observed in the court below. Appellant states, as facts, that after the plaintiff closed her evidence, and before the defendants introduced any evidence, or the cause was argued, or argument was waived, or the cause was submitted, the court decided that the plaintiff had no interest in the land, and by such an announcement invited the defendants to move for judgment, which was done. The record does not sustain the claim as to the facts. It shows, as we have stated, that, after the evidence for the plaintiff closed, the defendants moved for judgment in their favor, which motion the court sustained. The motion seems to have been regularly made and determined. There is nothing in such a procedure to divest this court of jurisdiction to determine the merits of the controversy.

III. It is next insisted, that the ruling by Judge Ryan, as to the sufficiency of the petition, was conclusive, "for the reason that, under our system of practice, there is no way to question the sufficiency of a petition except by demurrer. And when that method of testing a petition is abandoned by filing an answer, the petition must be conclusively presumed to be good, for there is no way left to ascertain to the contrary." This must mean that the ruling on the demurrer is a conclusive adjudication of the question presented by it. A difficulty with the proposition is, Acts Twenty-fifth General Assembly, Chapter 96. It amends section 2650 of the Code, as follows:

"A demurrer shall be considered as an admission of the allegations of the pleading demurred to for the purposes of demurrer, and for such purposes only; and when the demurrer shall be overruled, and the party demurring shall answer, or reply, the ruling on the demurrer shall not be considered as an adjudication of any question raised by the demurrer; and in such case the sufficiency of the pleading thus attacked shall be determined as if no demurrer had been filed. No pleading shall be held sufficient on account of a failure to demur thereto." The following is a part of Code, section 2650: "When any matters enumerated as grounds of demurrer, do not appear on the face of the petition, the objection may be taken by answer. If no such objection is taken it shall be deemed waived." The act in question strikes out the words we have italicized. We need not attempt to define the change in the practice by the act. It is sufficient to say that it negatives the proposition contended for by appellant. It is expressly said in the first section that such a pleading "shall be determined as if no demurrer had been filed." Before the act, we would have said the petition must be held sufficient for a failure to demur. But the last cause of the section provides, "No pleading shall be held sufficient on account of a failure to demur thereto." The language of the act is not addressed to this court, but it seems as...