Mohn v. Mohn
| Decision Date | 09 July 1910 |
| Citation | 148 Iowa 288,126 N.W. 1127 |
| Parties | MOHN ET AL. v. MOHN ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Jones County; W. N. Treichler, Judge.
Action originally brought by plaintiff Elizabeth Mohn to quiet title to the lands in controversy. Defendants denied that plaintiff held anything more than a life estate in and to the lands, and this they alleged she had sold to defendant Philip G. Mohn, now deceased, during his lifetime. They also alleged that plaintiff had been in possession of the premises since the death of Philip G. Mohn, and they asked an accounting and that she be enjoined from interfering with defendants' taking possession. The claim for an accounting was dismissed without prejudice during the trial of the case. William Mohn and John F. Mohn, sons of Conrad Mohn, deceased, intervened in the action and asked that the fee title be declared to be in the original plaintiff. On these issues the case was tried to the court, resulting in a decree dismissing plaintiff's and interveners' petitions and quieting title to the lands in defendants. Plaintiff and interveners appeal. Affirmed.Randall, Courtney & Harding and Jamison, Smyth & Hann, for appellants.
Remley & Remley, Chas. W. Kepler & Son, and E. A. Johnson, for appellees.
Conrad Mohn died testate October 29, 1891, and his will was admitted to probate at the March, 1892, term of the Jones county district court. He left surviving his widow, Elizabeth Mohn, plaintiff in the present action, Philip Mohn, now deceased, John F. Mohn, and William Mohn, interveners, and Minnie Mohn Murfield, one of the defendants, sons and daughter, his sole and only heirs at law. The widow is still living and unmarried. Philip Mohn died on or about October 9, 1906, leaving surviving his widow, Lottie Mohn, and Ora Russell Mohn, Conrad Mohn, and Minnie Mohn, defendants, his children. Since his death there was born to his widow a daughter, Florence June Mohn, who is also a defendant.
The will of Conrad Mohn, which lies at the bottom of this controversy, reads as follows:
“Know all men by these Presents that I Conrad Mohn of the county of Jones and State of Iowa of the age of Sixty-five years being of sound and disposing mind do hereby make Publish and declare this my last will and Testament in manner following hereby Revoking all former wills made by me.
1st. I, order and direct that all Just debts shall be Paid out of my Estate.
5th I direct that after the Death of my wife my son Philip Mohn shall have the Land above described at forty-five dollars Per acre and the Proceeds of the same shall Be divided among all my children share and share alike
6th I order that my son Williams share shall Remain in said farm until all of his children shall Become of age then three Hundred dollars shall be Paid to him and the Bal of the shall be divided among his children share and share alike.
7th I order that my said son William Mohn shall Receive the Interest on his share from the Death of my said wife until his children Becomes of age then the Principal be divided Between them share and share alike after the Payment of the three hundred dollars to my said son William Mohn as above stated
8th And lastly I appoint my said wife Executor of this my last will and Testament
Signed this first day of October 1891. Conrad Mohn.”
“The above Instrument Consisting of one Sheet was at the date thereof signed and declared by the said Conrad Mohn as and for his last will and Testament in Presence of us, who at his Request and in his Presence have subscribed our names as witnesses thereto.
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¦H. C. Kurtz, ¦Lisbon, Linn county. ¦
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¦John E. Kurtz,¦Lisbon, Linn county.”¦
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In order to avoid confusion we shall call the widow and interveners plaintiffs, as their claims are identical, and, save as hereinafter indicated, we shall treat the defendants as the representatives or successors of Philip Mohn, deceased. Plaintiffs claim: First, that under the will of Conrad Mohn, deceased, Elizabeth Mohn, widow, took title to the real estate left by testator in fee simple absolute; second, that if she did not take the real estate in fee under the will, she took a life estate in all the lands and an undivided one-third in fee simple; and third, that in any event she is entitled to her distributive share in all the real estate left by her deceased husband, because she has in no manner surrendered the same. Again plaintiffs contend that nothing passed under the fifth paragraph of the will save an option in Philip G. Mohn to purchase at the time of the death of the widow of Conrad, and that as Philip died without exercising his option, nothing passed to defendants as his successors under this fifth paragraph. Further claim is made that if the fee did not pass to Conrad's widow under the will, it did not pass to Philip and that the real estate should pass as if it had never been devised. Defendants contend that nothing but a life estate passed to plaintiff, the widow; that this she sold for a valuable consideration to Philip during his lifetime; that the widow elected to take a life estate in lieu of dower and that they, defendants, are entitled to have their title quieted in them to all the lands in controversy because Philip took a vested estate under the fifth paragragh of the will, burdened only with a lien to the amount of forty-five ($45) dollars per acre upon the land, to be divided among all of testator's children or their successors, share and share alike. The first question is the nature of the devise to Elizabeth Mohn. A careful reading of the will indicates that it gave the real estate described to the widow during life or so long as she shall remain testator's widow. No other reasonable construction can be placed upon the second paragraph of the will. The following, among other cases, are conclusive upon this proposition: Spaan v. Anderson, 115 Iowa, 121, 88 N. W. 200;Podaril v. Clark, 118 Iowa, 268, 91 N. W. 1091;Simpkins v. Bales, 123 Iowa, 64, 98 N. W. 580;Steiff v. Seibert, 128 Iowa, 748, 105 N. W. 328, 6 L. R. A. (N. S.) 1186;Wenger v. Thompson, 128 Iowa, 754, 105 N. W. 333;Webb v. Webb, 130 Iowa, 460, 104 N. W. 438;Scott v. Scott, 132 Iowa, 37, 109 N. W. 293;Hoefliger v. Hoefliger, 132 Iowa, 576, 107 N. W. 312;Luckey v. McCray, 125 Iowa, 693, 101 N. W. 516.
2. Testator died and the will was admitted to probate prior to the adoption of the Code of 1897. At the time of the probate of the will the statute with reference to the widow's distributive share read as follows: “Any person of full age and sound mind may dispose, by will, of all his property except what is sufficient to pay his debts, or what is allowed as a homestead, or otherwise given by law as privileged property to his wife and family.” McClain's Code, § 3522 (section 2322, Code 1873). “When the interests of creditors will not thereby be prejudiced, a testator may prescribe the entire manner in which his estate shall be administered on; may exempt the executor from the necessity of giving bond, and may prescribe the manner in which his affairs shall be conducted until his estate is finally settled, or until his minor children become of age.” McClain's Code, § 3610 (section 2406, Code 1873). “One third in value of all the legal or equitable estates in real property, possessed by the husband at any time during the marriage, which have not been sold on execution or any other judicial sale, and to which the wife has made no relinquishment of her right, shall be set apart as her property in fee-simple, if she survive him.” McClain's Code, § 3644 (section 2440, Code 1873). “The widow's share cannot be affected by any will of her husband, unless she consents thereto within six months after notice to her of the provisions of the will by the other parties interested in the estate, which consent shall be entered on the proper record of the circuit [district] court.” McClain's Code, § 3656 (section 2452, Code 1873).
Plaintiffs claim that the devise of the life estate to the widow was not inconsistent with her right to distributive share of one-third in the entire estate, and that she is entitled to both life estate and distributive share under the statutes before quoted. That there is some confusion in our cases construing these statutes is conceded. The underlying principle is that if there be such inconsistency between the estate devised and distributive share that the claim to the devise and to distributive share will defeat some provision of the will, the widow cannot have both, but must elect as to which she will take. Manifestly it was testator's intent, under the second paragraph of the will, to give his widow a life estate, or rather a life estate or an estate during her widowhood, and by the fifth, sixth, and seventh paragraphs he intended that upon the death of his wife the lands be...
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