McCulloch's Estate v. Conrad
| Decision Date | 04 March 1952 |
| Docket Number | No. 47921,47921 |
| Citation | 52 N.W.2d 67,243 Iowa 449 |
| Parties | McCULLOCH'S ESTATE et al. v. CONRAD et al. |
| Court | Iowa Supreme Court |
Arlo W. Palmer, of Oskaloosa, Ralph L. Bailey, of Cleveland, Ohio, Badger, Pyers & Miller, of Millersburg, Ohio, and T. L. Withers, of Reno, Nev., for various appellants.
Larson & Long, of Leon, Lundy, Butler & Lundy, of Eldora, for appellees.
On October 1, 1929, George McCulloch, born in 1848, and a resident of Humeston in Wayne County, Iowa, since 1880 or earlier, executed his last will and testament. Neither the execution of the will, nor his competency or volition, are in any way challenged. Omitting the preliminary paragraph, the material parts of the will are as follows:
'I give, devise and bequeath all my property, real, personal and mixed, which I may own at the time of my death, to my son, Milan Ellsworth McCulloch, except as follows:
The deceased duly executed the following codicil:
'No. 1--Codicil Feb. 11/35'
'Owing to changes in financial conditions, Albert Painter is not to receive thirty dollars monthly as specified in original will.
'Should my son Milan E. McCulloch die without heirs (lineal descendants) The following described lands are to be divided equally betwen the following heirs if living and if deceased to their heirs (lineal), Hugh McCulloch, David McCulloch, Isaac McCulloch, Alfred D. McCulloch, Joseph C. McCulloch.
'Living heirs of Martha Ann Sherlock (mistake in original will Mary instead of Martha) her son Albert Sherlock and A. E. Painter they shall have jointly one hundred twenty acres outside of Richman twp. Marine Reihnold shall receive fifty dollars and if deceased it shall go back into the general fund. The above named McCulloch brothers or their heirs (lineal descendants) if deceased shall receive the following described lands in Richman Twp. Wayne County, Iowa SW 1/4 and SE 1/4 of the NW 1/4 Sec. 20 consisting of two hundred acres E 1/2 Sec. 19 three hundred and twenty acres and Seventy-seven 265/1000 acres on the E. side of the NW 1/4 Sec. 19--NW 1/4 of Sec. 30 consisting of one hundred and sixty acres.
'But no land or bonds (not due) shall be sold and deeded by my son Milan E McCulloch unless indorsed by written consent of Harry I. McCulloch.
'James McCulloch
Ella Schlegal
A. P. McCulloch
'The above three named now deceased or their lineal descendants shall only receive fifty dollars instead of one hundred dollars as specified in the original will.
'If any of the heirs (lineal descent) can not be found in one year from time of Milan E. McCulloch's death their specified shares shall be divided among the known heirs.
'Codicil Feb. 11/35
(signed) George McCulloch.'
George McCulloch died a resident of Humeston, Wayne County, Iowa, April 12, 1936, leaving said will and codicil as his last testament. The instruments were probated in the district court of said county on May 14, 1936, as the last will and testament of the deceased, and at the same time Milan E. McCulloch qualified as executor of the estate and thereafter administered it.
On July 3, 1950 he filed his 'Final Report and Application for Confirmation of Title', with the clerk of the district court. In it he noted his doings as such officer of the court: the payment of all claims, court costs, including the service fees of his official attorney, the Honorable H. K. Evans, formerly judge of the Third Judicial District of Iowa, and taxes of all kinds; the legal description, and acreage, or dimensions, of each specific tract belonging to the estate. It recited that: decedent left no spouse surviving, and no heir but his son Milan E. McCulloch; the names of each devisee and legatee, and whether they were deceased or living, and the addresses of the latter, but two of these, Marine Reihnhold and Albert Sherlock, in addition to the executor, were living; the names of all the heirs of the body of the deceased devisees and legatees, and whether deceased or living, and the addresses of the latter.
Paragraph X of the Report is as follows: 'This Executor as such and for himself as an individual shows that as son and as heir and as devisee of the Decedent, George McCulloch, as well as by all other rights of which he is possessed is the absolute owner of all properties of Decedent, real and personal, and is entitled to hold all such as his own, and that all such properties have been distributed to him and received by him and are now held by him.'
The executor prayed that his final report be approved, the estate closed and he be discharged. The second paragraph of his prayer was: 'That upon final hearing had his distribution of properties be approved; and that absolute title to all of the property of the Decedent herein, real, personal and mixed, be confirmed in him as an individual.'
Three sets of objections to the final report and application for confirmation of title, together with three peritions for declaratory judgment, were filed by three sets of heirs of, or claimants under, deceased devisees and legatees of the will in controversy. Appellants designate them as the 'McCulloch Group', who claim the 757-acre tract, and the 'Sherlock-Painter Group', interested in the 120 acres outside of Richman township, and the 'Painter Group', interested in the 160 acres outside of Richman township. The separation of these groups is not important as their claims are all based on similar grounds and the character of relief asked is the same, and they are all designated as 'Objectors'. The groups were consolidated in the hearing and decision below, and they will be treated together here.
These objections particularly attack paragraph X of the final report and the second paragraph of its prayer, both of which we have set out in full, in which Milan E. McCulloch, as an individual and devisee, claims all of the estate as his own, and asks that his title and ownership be confirmed. The objectors allege that, with respect to the specific tract in which each group claims an interest under the will and codicil, the testator did not intend that Milan E. McCulloch should have an absolute fee simple title, but that in the event of his death at any time without lineal descendants, the said tracts of real estate should pass to other devisees, named in the will and codicil, if living, or to their lineal descendants, if deceased. The objectors admit that they are some of the persons listed in paragraph IX of the executor's report as heirs of deceased devisees named in the will and codicil, and that their names and relationship are correctly stated.
There is no controversy over the facts. Many facts were agreed to by written stipulation of the parties, some of which we have stated. In support of his report, the executor introduced this stipulation and then rested, without offering any testimonial evidence. The objectors then used Milan E. McCulloch, the executor, and Mr. Bert McCulloch, as witnesses and then rested. From the stipulation and testimony these facts are shown. The father of the testator came to Wayne County in 1858 and located and acquired about 800 acres of land, of which the 757-acre tract, specifically described in both the original will and the codicil, is a part. There were twelve sons and daughters in the family of this pioneer. On the death of his father, George McCulloch inherited his share of the 800 acres and bought the shares of the other heirs and distributees. George McCulloch first went to Rush Medical College in Chicago, and was in attendance there in 1871 at the time of the Chicago fire. His class was transferred to the University of Michigan, at Ann Arbor, and he received his degree of M.D. there. He practiced his profession at Hastings, Nebraska and at Brooklyn, before he came to Humeston in the seventies, where he thereafter followed his profession until his death in 1936 at the age of eighty-seven years. He prospered and at the time of his death owned twenty parcels of real estate--thirteen tracts of farm land in Wayne, Lucas, and Decatur counties, containing approximately 2063 acres--and seven business and residence properties in Humeston. Albert E. Painter, mentioned as a devisee in the will, was a son of Martha Ann Sherlock, a sister of George McCulloch. His parents died when he was young and he was reared in the home of the parents of George. He died April 20, 1942, leaving his wife Maude W. Painter of Reno, Nevada surviving, and his sole and only lineal descendant, Janifield Painter Percissi, daughter of his deceased son.
Milan E. McCulloch was born in January, 1883. He graduated from the Humeston High School, and attended Drake University and the University of Iowa each for one year. He graduated from the Iowa State College at Ames, and received the degree of Bachelor of Animal Husbandry. He took post graduate work at the University of Chicago, and received the degree of Doctor of Jurisprudence. He never...
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