Parker v. Foxworthy

• Decision Date: 15 December 1914
• Docket Number: No. 29646.,29646.
• Parties: PARKER ET AL. v. FOXWORTHY ET AL.
• Court: Iowa Supreme Court

167 Iowa 649

149 N.W. 879

PARKER ET AL.

v.FOXWORTHY ET AL.

No. 29646.

Supreme Court of Iowa.

Dec. 15, 1914.

Appeal from District Court, Mills County; Thomas Arthur, Judge.

Action of partition. The trial court sustained defendant's claims to the property, and plaintiffs appeal. Affirmed.John Y. Stone, of Glenwood, and D. E. Whitfield, of Malvern, for appellants.

Byron G. Burbank, for appellees.

DEEMER, J.

The respective parties claim title to the real estate in controversy under and in virtue of the will of Jose Foxworthy, deceased, the material parts of which read as follows:

“I hereby give to the heirs of my daughter, Rachel Tubbs, now deceased, the sum of three hundred dollars ($300.00) to be divided between said heirs, share and share alike.

I hereby give, devise and bequeath all the rest and residue of my estate both real and personal, that I now own or may acquire and own at the time of my decease, to my beloved wife, Mary M. Foxworthy, for her sole use and benefit during her natural life. After her decease all of my said estate remaining unused shall be distributed to my heirs share and share alike.

I also direct that if any of my said heirs shall not survive my said wife, Mary M. Foxworthy, that portion of said estate which would have gone to said heir had such an one been living, shall be divided share and share alike between the legal heirs of my said heir at that time deceased.”

Plaintiff Mary E. Parker is a daughter of the deceased. The other defendants, aside from George Foxworthy, Ellen Henderson, William Foxworthy, Malisa Schappel, Meda Grant, Florence Seitz, and Anarpy Sloneker, who are sons and daughters of the deceased, are either the wives of these heirs or grandchildren of the deceased, and their husbands or wives being the children of Rufus Foxworthy, a deceased son of the deceased, or of other deceased sons or daughters. Plaintiffs claim that the living sons and daughters of the deceased, nine in number, are each entitled to a one-tenth of the property, and that the grandchildren of the deceased simply take the share that their parents would have taken had they survived their parents. In other words, plaintiffs say that these grandchildren are each entitled to a one-nineteenth interest in the property; while they insist that they are each entitled to a one-eighteenth interest therein.

[1][2] The solution of the problem is dependent upon the rule of law to be applied; that is, whether the descent shall be per stirpes or per capita. The trial court found that it should be per capita, and the appeal is from this ruling. Under our statute in the absence of a will real estate descends in equal shares to the children of one deceased (assuming there is no wife to take her share), and, if any of them be dead, his or her heirs inherit his or her share as though such child had outlived its parents. Code, § 3378. But one may direct the devolution of his estate by will, and, if he does so, it does not descend under the statute, but passes by the will as an...