Opel v. Shoup

• Decision Date: 12 December 1896
• Citation: 69 N.W. 560,100 Iowa 407
• Parties: OPEL v. SHOUP ET AL.
• Court: Iowa Supreme Court

100 Iowa 407

69 N.W. 560

OPEL

v.SHOUP ET AL.

Supreme Court of Iowa.

Dec. 12, 1896.

Appeal from district court, Johnson county; M. J. Wade, Judge.

Action in equity to determine the interest of the several parties in lots 1, 2, and 3, block 51, in Iowa City, belonging to the estate of John C. Hormel, a resident of Iowa, who died at Iowa City, testate, April 13, 1892. All the defendants except the wife and children of F. C. Hormel, deceased, appeal from the decree rendered. Affirmed.Joe A. Edwards, for plaintiff.

Remley & Ney, for appellants.

Robinson & Patterson, for Anna Shoup.

GIVEN, J.

1. The last will and testament of John C. Hormel, deceased, provides as follows: “After my death, I desire that my estate, of whatever name and nature, be placed in the hands of a trustee, hereinafter named, to be by him invested so as to be productive of good interest, and in such manner as he may deem safe. (2) I desire that the entire proceeds of said investment of my estate shall be paid at the end of each year to my wife, Elizabeth Hormel, so long as she shall remain my widow. If she marries again, then I desire that one-half of my estate be paid to her for her own free use and behoof, and the other half to be paid to my sister Anna Shoup, now living at Springfield, Illinois. In case my sister dies before the division of my estate is made as above provided, then I desire that the one-half of my estate be divided equally between my heirs at law by blood kinship.” A. A. Ball was appointed in the will as trustee and sole executor, and qualified as such. The first contention is whether the defendant (appellant) Anna Shoup is entitled to one-half of the property in question under said will. John C. Hormel died April 13, 1892, without issue, leaving his wife, Elizabeth Hormel, and his sister Anna Shoup, surviving him; his parents, brothers, and sister, other than Anna, having departed this life prior to his death. Elizabeth Hormel died, intestate, November 29, 1892, not having married again. The rules for construing wills are so well understood, and of such frequent application, that we need not refer to the many authorities cited; it is sufficient that we refer to Kiene v. Gmehle, 85 Iowa, 313, 52 N. W. 232. In that case this court quoted, with approval, from cases cited, as follows: “The cardinal principle to be kept in view is that the intent of the testator, if possible, is to be ascertained in the construction of wills. Courts always look upon the intent of the testator as the polar star to direct them in construction of wills. The object of all rules of interpretation is to discover the intent, and this should be gathered from the whole instrument. It may, however, be trusted as a safe rule to follow in all cases of construction of contracts, conveyances, or wills that the intent of the parties, manifested by the reading of the whole instrument together, in the light of attending circumstances, must control the meaning.” It is said in that case: “The intent of the testator, as shown by the will construed according to established rules, must control. Courts may not give effect to any other result than that intended. To do so would be to make the will for the testator. Neither may they defeat the intention when it is lawful.” Guided by these rules, we turn to the will to ascertain the intent of the testator in respect of the devise to Anna Shoup. It is therein plainly written, in unmistakable terms, that the proceeds of the estate are to be paid to Elizabeth Hormel “so long as she shall remain my widow,” and, in terms quite as definite, that, if she marries again, one half shall be paid to her for her own free use, “and the other half to be paid to my sister Anna Shoup.” The sole contingency upon which Anna Shoup was to be paid one half was the remarriage of Elizabeth Hormel. Elizabeth Hormel did not marry again, and therefore the contingency upon which alone Anna Shoup was to have one half of the estate never occurred. Under the facts, viewed from our standpoint, we might say that it would be reasonable and equitable if the testator had provided that one half should go to Anna Shoup on the death of the widow without remarriage as well as upon her marrying again; but the will does not so provide. The testator had a right to rest it upon the condition that he did, and, having done so, it is not for us to inquire as to his reasons. We think the learned district judge held properly that Anna Shoup is not entitled to take one half of the estate under the will, and that she is only entitled to share therein as an heir of John C. Hormel, deceased.

2. Elizabeth Hormel was a citizen of the United States, and a resident of the state of Iowa, at the time of her death. In the few months that transpired between the death of her husband and her own death, she had not elected whether she would take under his will or under the statute; but it is not questioned but that she died seised of an undivided half of the real estate in controversy, and that her interest passed to her next of kin legally qualified to inherit the same, immediately upon her death. She died without issue, leaving, as her only parent surviving her, her mother, Elizabeth Opel, a nonresident alien, residing in Bavaria, Germany. Elizabeth Opel died, intestate, in Bavaria, on May 12, 1894, leaving, as her next kin, surviving her, her children, John Opel, Sr., and Barbara Degleman, both nonresident aliens, and the plaintiff, Fred Opel, a citizen of the United States, and resident of the state of Iowa. The plaintiff, Fred Opel, contends that he is entitled to inherit the undivided one-half of said real estate from his sister Elizabeth Hormel, either solely or with his said brother and sister. It is contended on behalf of the heirs of John C. Hormel that neither the plaintiff nor the other children of Elizabeth Opel are entitled to so inherit, and that, therefore, no heirs of Elizabeth Hormel being found legally entitled to inherit said property, it goes to the heirs of her deceased husband, John C. Hormel, under section 2458 of the Code of Iowa.

Leaving out of consideration the fact of alienage, it would not be questioned but that, upon her death, the estate of Mrs. Hormel vested in her mother, and, upon her death, in her children, Fred Opel, John Opel, Sr., and Barbara Degleman. Chapter 85, Acts 22d Gen. Assem., approved April 9, 1888, provides as follows: “Section 1. Nonresident aliens * * * are hereby prohibited from acquiring title to or taking or holding any lands or real estate in this state by descent, devise, purchase, or otherwise only as hereinafter provided.” An exception is thereinafter provided in favor of “the widow and heirs of aliens who have heretofore acquired lands in this state under the laws thereof”; but this exception does not apply to this case, as Elizabeth Hormel was not an alien. Section 2 of said chapter provides as follows: “Sec. 2. Any nonresident alien may acquire and hold real property to the extent of three hundred and twenty (320) acres, or city property to the amount of $10,000 in value, providing that within five years from the date of purchase of said property the same is placed in the actual possession of a relative of such purchaser, the occupant being related to such owner within the third degree of kindred or the husband or wife of such relative, and further provided that such occupant become a naturalized citizen within ten years from the purchase of said property as aforesaid.” In Bennett v. Hibbert, 88 Iowa, 155, 55 N. W. 93, it is held that “purchase” and “purchaser,” as found in this section, include every method of acquiring title to real estate except by descent by operation of law. See Burrow v. Burrow (Iowa) 67 N. W. 287. Section 7 of said chapter provides that the act shall not apply to aliens who are residents of the state of Iowa. It is certainly clear that Mrs. Opel was disqualified from acquiring title to or taking or holding this real estate by descent under the prohibitions of the first section, and that she is not within either of the exceptions made to that prohibition. In Furenes v. Mickelson, 86 Iowa, 508, 53 N. W. 416, this court held that a naturalized citizen resident of this state cannot inherit through a father, who is a nonresident alien, the lands of a great uncle, who was a naturalized citizen, “on the ground that a line of inheritance cannot be traced through nonresident aliens.” If nothing further appeared, the conclusion would follow from what we have said that the estate did not pass to Elizabeth Opel, and consequently did not pass to her children.

3. On January 21, 1845, there was concluded and adopted between the United States of America and the king of Bavaria, Germany, a treaty, articles 1, 2, and 3 of which are as follows:

“Article 1. Every kind of droit d'aubaine, droit de retraite, and droit de...