Overturff v. Miller

• Decision Date: 20 September 1955
• Docket Number: No. 48678,48678
• Citation: 247 Iowa 284,71 N.W.2d 913
• Parties: Simon OVERTURFF, Appellant, v. Arthur MILLER, Hiel Overturff, Helen Overturff Beasley, Ben Overturff, and Mabel Overturff, Appellees.
• Court: Iowa Supreme Court

Page 913

71 N.W.2d 913

247 Iowa 284

Simon OVERTURFF, Appellant, v. Arthur MILLER, Hiel Overturff, Helen Overturff Beasley, Ben Overturff, and Mabel Overturff, Appellees.

No. 48678.

Supreme Court of Iowa.

Sept. 20, 1955.

Rehearing Denied Nov. 18, 1955.

Bailey C. Webber and Hal P. Beck, Ottumwa, for appellant.

Simpson & Louden, and Leo D. Thoma, Fairfield, Clyde E. Jones, Ottumwa, for appellees.

BLISS, Justice.

The appeal presents some troublesome questions. And while the ultimate issue is a legal one, the facts are important, though not in dispute. Allen Overturff, 73, of Van Buren County, Iowa, executed his last will on April 21, 1910, which was probated August 22, 1911. He was survived by four sons, four daughters and a granddaughter, all of whom were named in the will. At his death he owned 480 acres of farm land, his home in town, and certain personal property, the kind and value of which is not shown. He devised 40 acres of his land to one of his daughters. All the remainder of his property, both real and personal, he devised and bequeathed to his four sons, D. N., Harry, Ben, and Simon Overturff, but subject to certain conditions and burdens. Because of some of the matters discussed by counsel, we think it will be helpful to set out the will quite fully, with the paragraphs in consecutive order, and some of them verbatim. The number of each paragraph having a number is shown.

'Last Will and Testament Of Allen Overturff.

'Know All Men By These Presents:

'That I, Allen Overturff, aged seventy three years, * * *, being of sound mind and memory * * * and desiring to make a just and equitable distribution of my property among my children do make and declare this instrument to be my last Will and Testament, * * *.

'1st. It is my desire that all my just debts and funeral expenses be paid----

'2nd. I give, bequeath and devise upon certain conditions hereinafter named, all and singular my property both real and personal wherever situated or found unto my Sons (Excepting only the South 1/2 of the south west quarter of the North West quarter of Section Eleven, and the South 1/2 of the South East quarter of the North East Quarter of Section Ten all in township seventy North of Range eleven West containing forty acres) D. N. Overturff, Harry Overturff, Ben Overturff, and Simon Overturff, all of Van-Buren County, Iowa, (Excepting Ben Overturff now temporarily living in Monrovia, California,) with the understanding that no division or partition of said real estate be made or sold, unless all my Sons above named agree to the same, and not then until all my Daughters below named shall have paid to them the amounts herein named, and which said amounts are to be paid by my Sons, D. N.--Harry--Ben and Simon Overturff, as follows:

'To my Daughter Effie May Mechem Twenty-five Hundred ($2500) Dollars. To my Daughters Lillie Belle Overturff and Margaret Samantha Nutt (both of Van Buren County) and Mary Cramlet of Monrovia, California, each the sum of Two Thousand ($2000) Dollars, and to my Grand Daughter--Ruby Byers of Selma, Iowa, Post Office, Five Hundred ($500.00) Dollars to be paid to her at the age of eighteen years. All of the above named amounts to be paid by my above named Sons, not later than five (5) years after the establishing of this Will, with interest at the rate of 6 per cent annum payable annually.

'I make this bequest to my Sons upon the further consideration that my above named Sons shall keep and care for Lillie Belle Overturff, she to have a home, with my Sons, on the home place, and to be cared for by them as long as she may live, free of expense to her.

'I further will and bequeath to my Daughter, Effie May Mechem, the South Half (1/2) of the South West Quarter of the North West Quarter of Section Eleven (11) and the South One Half (1/2) of the South East Quarter of the North East Quarter of Section Ten (10) all in Township Seventy (70) North of Range Eleven (11) West containing Forth (40) acres.

'In the event of the death of one or more of my Sons, without issue, it is my desire and will that his or their interest in all real property inherited under this will revert to my estate, and be divided equally among my remaining Sons,--.'

In the next to the last paragraph of the will the testator provides that if any legatee should challenge the will by court action, any property willed to him should pass to, and be equally divided among noncontesting legatees.

The last paragraph of the will provides for the appointment of D. N. and Simon Overturff as executors of the will. They qualified and acted as such.

The estate was closed and the executors discharged by final order made in 1912. The four sons of the testator survived him. In 1930, the son, Harry Overturff, died testate, leaving surviving him his widow, Mabel Overturff, life tenant under his will and two children Hiel Overturff and Helen Overturff Beasley, who were to take the property absolutely at the death of the widow.

The son, D. N. Overturff, died August 16, 1952, never having married, and without issue. On May 25, 1950, he executed a quitclaim deed conveying to Hiel Overturff and Helen Overturff Beasley his interest in the real estate devised to him by the testator, Allen Overturff.

The son, Ben Overturff, aged 76, at the time of the trial, childless, though married, lived with his wife at Monrovia, Calif.

On July 29, 1937, Frank Young, one of the appellees herein, obtained a sheriff's deed to the undivided interest of Simon Overturff in the land devised by the testator to his four sons, which interest of Frank Young was later conveyed by his heirs by quitclaim deed to A. H. Miller (Arthur Miller) one of the appellees herein. The sheriff's deed was on an execution sale on a judgment entered May 14, 1936, against Simon Overturff and wife. Simon Overturff has two children, Sarah Overturff Nelson and Margaret Overturff Hartley.

On April 19, 1938, Frank Young, grantee in the sheriff's deed, filed his suit in partition in the Van Buren County District Court, against the following parties as defendants: D. N. Overturff, simon Overturff, and Myrtle Overturff, his wife; Ben Overturff and Bertha Overturff, his wife; Harry Overturff, deceased, and Mabel Overturff, his surviving wife, and Helen Overturff and Hiel Overturff, the sole and only heirs of Harry Overturff; Lillie Belle Overturff Lewis, and L. H. Laughlin, lessee. All defendants were duly served or they appeared.

The plaintiff in said action alleged that by his sheriff's deed he was the owner of an undivided one fourth interest in all of the real estate devised by the testator, Allen Overturff, to his four sons; and the owners of the remaining three-fourths of the said real estate were D. N. Overturff, an undivided one fourth, Ben Overturff, an undivided one fourth, Helen Overturff, an undivided one eighth, and Hiel Overturff, an undivided one eighth, and since they disagreed on the division of the real estate, plaintiff prayed for judgment partitioning the land in accord with the respective shares alleged in the petition. To this petition, on January 10, 1939, Simon Overturff and wife filed answer denying Young had title to any part of the real estate, entitling him to a partition of it. On August 22, 1941, Young, on ruling of the Court, amended his petition by alleging that all provisions of the Allen Overturff will, which might have created a lien on the land devised to the four sons, had been complied with, or had lapsed for failure to enforce the same and were barred by the statute of limitations, for the reason that in the probate proceedings in the Allen Overturff Estate, in which all parties, who had an interest in land described in Young's petition, were brought into Court, and on August 28, 1912, Simon Overturff and his three brothers were adjudged to be owners of all the real estate of which the testator died seized except that devised to Effie May Mechem. On April 20, 1940, in the petition suit, four of the defendants therein, to wit, D. N. Overturff, Mabel Overturff, Helen Overturff and Lillie Belle Overturff Lewis, moved the dismissal of Young's petition. (The defendants who did not join in the motion were Simon Overturff and wife, Ben Overturff and wife and Hiel Overturff). On August 26, 1941, the moving defendants amended their motion to dismiss, by alleging that on the face of the Young petition it appears that Simon Overturff had a defeasible fee in said real estate, and his rights of ownership therein were subject to the possibility of reverter in the event he died without issue.

On October 6, 1941, in the partition suit, the Court (Simmons, J.) sustained the motion to dismiss, stating: 'Motion to dismiss in this case was sustained (Note. A memorandum ruling had previously been made.) on the ground that the will prohibits sale or partition without consent of the devisees, and that such limitation is not void for repugnancy. Plaintiff (Young) has requested the Court to further construe the will and determine the nature of the interest of the plaintiff by determining the validity of the sixth paragraph of the will. (Note. This is the paragraph providing that if any of the four sons died without issue, all interest so devised to him or them would revert to the testator's estate, and be divided equally among the remaining sons.) Defendant does not object, and though I am not sure that a determination of this question will be of benefit to the parties I agreed that it would be desirable if a final construction could be made at this time. * * *.' In sustaining the motion to dismiss the Court held that the devise to the four sons was not of a vested fee, and that if it were the sixth paragraph of the will was not repugnant.

We have discussed the partition suit because plaintiff on this appeal contends that the dismissal in that suit is res adjudicata of the issues before us.

The petition filed by plaintiff, March 23, 1953, in the action on appeal,...