Mitchell v. Vest
| Decision Date | 25 June 1912 |
| Citation | 136 N.W. 1054,157 Iowa 336 |
| Parties | MARY E. MITCHELL, ANNIE E. CLARK and Others, Appellants, v. F. E. VEST and ADDIE VEST and MARY E. MITCHELL and Others, Appellants, v. JAMES MCDONALD and Others, and MARY E. MITCHELL and Others, Appellants, v. J. F. EWING and Others, MARY E. MITCHELL and Others, Appellants, v. C. H. TAYLOR and Others, Heirs of WILLIAM EMSLIE, deceased, Appellants, v. S. A. HUNTER and Others, Heirs of WILLIAM EMSLIE, deceased, Appellants, v. W. C. MCKEE and Others, and J. W. CARR, Executor, v. ANNA E. CLARK and Others, Appellants |
| Court | Iowa Supreme Court |
Appeal from Poweshiek District Court.--HON. W. G. CLEMENTS, Judge.
Affirmed.
J. M Goodson, for appellants.
Talbott & Talbott and J. W. Carr, for appellees.
THE opinion gives the facts and issues.--Affirmed.
William Emslie died in 1893, the owner of the lands in controversy. He left surviving him his widow, Mary S. Emslie, and six brothers and sisters, but no issue. Of these brothers and sisters but two, George Emslie and Annie E. Clark, were residents of the United States. The others were aliens residing in England and Wales. Annie E. Clark and Mary E Mitchell are the two surviving sisters of William Emslie; the other brothers and sisters having died before the commencement of these actions. The plaintiffs herein, other than Mary E. Mitchell and Annie E. Clark, are the heirs of these deceased brothers and sisters. William Emslie left a will as follows:
First. I direct that all my just debts, including funeral expenses, be paid as soon after my decease as can be done without injury to my estate.
Second. I give, devise and bequeath unto my beloved wife, Mary S. Emslie, one-half of all my estate, both real and personal, absolutely and in fee simple. And I also give, bequeath and devise unto my said wife Mary S. Emslie, the use, rents and profits, control and enjoyment of the other one-half of all my estate both real and personal for and during her natural life.
Third. At the death of my said wife, Mary S. Emslie, I give what may be then remaining of one-half of my estate to my legal heirs.
Fourth. I hereby revoke all former wills by me at any time made.
Fifth. I hereby nominate and appoint my beloved wife, Mary S. Emslie, sole executrix of this my will and request the court to confirm her appointment without bond.
This will was duly admitted to probate. The widow, Mary S. Emslie, was appointed executrix thereof without bond, entered into possession of the property, and continued such possession until her death in 1903. She left a will naming J. W. Carr as executor of her estate and authorizing him to sell all of her property, both real and personal, and directing him to pay from the proceeds thereof the legacies and bequests provided for therein. Carr qualified as executor, and in due time sold the land in question herein, as such executor. These actions were brought in 1908 and 1909 against the parties who purchased from J. W. Carr, as executor of the estate of Mary S. Emslie, to recover an undivided one-half interest in and to the lands and to quiet the title thereto. In the several actions, the appellants claim to be the owners of an undivided one-half interest in the lands as devisees under the will of William Emslie. Several defenses were interposed, which we shall further notice in the course of the opinion. The court found against the appellants in all of the cases.
I. There is no question but what the will of William Emslie gave to his wife one half of his estate in fee, and a life estate in the other half thereof. The controversy between the parties on this branch of the case is whether the widow was entitled to a distributive share of the land in question under the statute, in addition to that given her by the will. We think it clear that the widow was not entitled to and did not take a distributive share under the law. The third clause of the will expressly provided that, at the death of the widow, whatever remained of the one-half of the estate given to her for life should go to the heirs of the testator. This was an explicit direction that the remainder of the life estate given to his widow should, after her death, be given to his legal heirs. The life estate that had already been given to the widow was one-half of the whole estate, and not what remained of such one-half after her distributive share had been taken therefrom, and this disposition of the remainder of the life estate would leave nothing from which the distributive share could be taken, and required an election on the part of the widow whether she would take under the will or under the statute. Parker v. Parker, 129 Iowa 600, 106 N.W. 8; Snyder v. Miller, 67 Iowa 261, 25 N.W. 240; Mohn v. Mohn, 148 Iowa 288, 126 N.W. 1127; Warner v. Hamill, 134 Iowa 279, 111 N.W. 939.
That she elected to take under the will can not be seriously questioned. In December, 1896, she filed a final report as executrix, in which she stated that William Emslie left a will in which he gave her one-half of all his estate absolutely "and the other half thereof to her for and during her lifetime, giving her full custody and control thereof, which said will was . . . duly admitted to probate, and is now on file in the office of the clerk of this court, to which reference is made." She further stated in her report that she had paid all costs and charges against said estate; that the estate was fully settled; and that she, as sole legatee named in the will, was in possession of all, and singular, the estate of said William Emslie, remaining after the payment of the debts and charges against said estate. This report was duly recorded, and under our decisions constituted an election to take under the will rather than under the statute. Mohn v. Mohn, supra; Craig v. Conover, 80 Iowa 355, 45 N.W. 892; In re Franke's Estate, 97 Iowa 704, 66 N.W. 918.
II. At the time of his death, William Emslie, his brother, George Emslie, and his sister, Annie E. Clark, were citizens of the United States. William Emslie's other brothers and sisters were at the time nonresident aliens. The plaintiffs, William M. Emslie, D. F. A. Emslie, Jane Cook, Orpha Emslie, Agness Williams and Anna Holmes are the children of George Emslie, deceased. All of the other plaintiffs, except Annie E. Clark, are children of the now deceased alien brothers and sisters. The appellees contend that the alien brothers and sisters of William Emslie could not, and hence did not, take anything under the will of William Emslie, because they were not his legal heirs at the time of his death, and therefore not of the class to whom he devised the remainder of the one-half of his estate. Chapter 85, Acts of the Twenty-Second General Assembly, was in force at that time, which provided as follows so far as material here: Section 2 of the act provided that any non-resident might acquire and hold certain real property on condition that, within a certain time from the date of its purchase, he place the same in the actual possession of a relation who shall comply with certain other conditions named in the act.
In Bennett v. Hibbert, 88 Iowa 154, 55 N.W. 93, the will under consideration devised to the defendant Hibbert, who was a nonresident alien, certain lands as the remainder of the testator's estate. The question was there presented whether he could take under the provisions of chapter 85, Acts of the Twenty-Second General Assembly. It was held that Hibbert could take under the will, because he was a purchaser within the meaning of the second section of the act. While the alien brothers and sisters of William Emslie would take, if at all, as devisees under the will, they could only take as such devisees by showing that they were his legal heirs at the time of his death, for the devise is expressly limited to such heirs. His brother George Emslie, and his sister Annie E. Clark, were legal heirs, because they were citizens. But the nonresident alien brothers and sisters were not legal heirs of the testator for the reason that the statute prohibited their taking by descent under the law. In Opel v. Shoup, 100 Iowa 407, 69 N.W. 560, it was held that section 1 of the act under consideration prohibited the descent of property to nonresident aliens, and that such aliens were not heirs who could inherit property in this state. We also held, in Burrow v. Burrow, 98 Iowa 400, 67 N.W. 287, that a nonresident alien could not take by descent. And see, also, Furenes v. Mickelson, 86 Iowa 508, 53 N.W. 416; King v. Ware, 53 Iowa 97, 4 N.W. 858; Brown v. Pearson, 41 Iowa 481.
To constitute one the legal heir of another, he must have inheritable blood. 2 Blackstone, 249. And where the Legislature of the state where the real property is situated has declared that nonresident aliens shall not take by descent, there is clearly no inheritable blood in such alien. The will was made shortly before the testator's death, when the act of the Twenty-Second General Assembly was in force, and it is to be presumed that the term "legal heirs" was used for a purpose. The testator's brother George, and his sister Annie E. Clark, were heirs who could take upon his death, and we think it must be held that they alone took under the will, and, if that be true, only Annie E. Clark and the heirs of George Emslie can have any possible interest in the land in question.
To avoid the effect of the act of the Twenty-Second General Assembly and our decisions thereunder, the appellants urge that nonresident aliens were protected by a treaty...
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