Porter v. Tracey
| Citation | 162 N.W. 800,179 Iowa 1295 |
| Decision Date | 16 May 1917 |
| Docket Number | 31349 |
| Parties | J. M. PORTER, Appellant, v. LYDIA A. TRACEY et al., Appellees |
| Court | United States State Supreme Court of Iowa |
Appeal from Jasper District Court.--K. E. WILLCOCKSON, Judge.
ACTION in equity for partition of real estate. Defendants' demurrer to the petition having been sustained, plaintiff appeals.
Affirmed.
E. J Salmon and George C. Kipp, for appellant.
E. C Ogg and Clements & Clements, for appellee.
On February 7, 1914, one A. J. Porter died, seized in fee of certain described lands in the state of Iowa. His will, dated December 14, 1911, provided for the distribution of his estate as follows:
1. Payment of debts and charges against his estate.
2. Bequest of $ 1,000 to his great niece, Marguerite Tracey.
3. Subject to the foregoing provisions, he devised one ninth of his entire estate to his half brother, Silas Porter; one ninth to the heirs of his half brother, Jared Porter; one ninth to the heirs of his sister, Nancy Yearous; one ninth to the heirs of his brother, James Porter; one ninth in equal parts to two named daughters of his brother, Isaac Porter; one ninth to the heirs of his brother, Caspar Porter; one ninth to the heirs of his brother, Philip Porter; one ninth to the heirs of his sister, Tamar Beggs; and one ninth to the heirs of his brother, William Porter.
On July 12, 1912, the testator executed a codicil to the foregoing will, providing as follows:
1. Directing the executors to pay a certain promissory note made by Ella A. Tracey to the Monroe National Bank and signed by himself as surety, and that the said Ella A. Tracey be released from any and all claims, direct or indirect, in favor of the testator or his estate.
2. A bequest to Ella A. Tracey of all his household goods and kitchen furniture.
3. Changing the devise made in the will in favor of two named daughters of his brother Isaac Porter so as to give another daughter, Sarah Rosenow, a one-third part of such devise.
4. The fourth and last paragraph of the codicil is in the following form:
"I desire that none of the real estate of which I die seized be sold for at least five years after my death, unless all legatees under my said will shall sign a written agreement or consent to said sale."
The testator died February 7, 1914, after which the will and codicil were duly admitted to probate. On July 12, 1915, the plaintiff, James Porter, the son and only heir of Caspar Porter, deceased, named in said will, began this action for partition of the lands owned by the testator, A. J. Porter, at the time of his decease. The petition impleaded as defendants all the persons appearing to be entitled to any interest in said property under the terms of said will, and set forth the fractional shares or parts thereof owned or held by each of said individuals, claiming for himself, as the sole heir and representative of Caspar Porter, an equal one-ninth part. He further alleges that the property cannot be equitably divided in kind, and asks that a sale thereof be ordered, and that the proceeds, less attorney's fees and costs, be distributed to the several legatees in proportion to their respective shares. To this action, all the defendants, except two minors and Lydia A. Tracey, a daughter and heir of Tamar Beggs', deceased, mentioned in said will, made default. Lydia A. Tracey appeared in the proceeding and demurred to the petition generally, and, the court having sustained the demurrer and entered judgment against plaintiff for costs, he prosecutes this appeal.
I. Stated briefly, the position of the appellant is that the will as originally written gave to the devisees a fee simple or absolute title, and that the clause of the codicil delaying a sale of the property for five years is at best a merely precatory provision which, "if it be construed as a restriction upon alienation during the period named, is inconsistent with the estate granted in the body of the will, and therefore void and of no effect."
In support of this argument, we are cited to the familiar authorities that a grantor or devisor of a fee cannot burden it with restraints upon its alienation, or in other words, he cannot devise an absolute estate in land and at the same time limit or restrict the devisee's right of sale, which is one of the essential elements of absolute ownership. He cannot give the whole and withhold part. The authorities to this effect are quite universally followed by the courts, and we need not take time to collate or discuss them. The serious inquiry in this case is whether the devise is within the rule so established; or, in other words, whether there is any insuperable repugnancy in the terms of the will, when read and construed as a whole in accordance with the apparent intent of the testator.
Counsel for appellant seem to treat the will and the subsequent codicil thereto as distinct and separate instruments, and say that the will as first executed devises an absolute fee, while the fourth clause of the codicil is a manifest attempt to burden such fee with a limitation upon the devisees' right to alienate the property. We think, however, that the will and codicil must be read together as one instrument. When the codicil was made, neither the plaintiff nor any of the devisees had acquired any right or interest or estate under the will. The testator had the right to revoke or destroy it or to change or amend its terms and attach any legal condition or restriction to the estate he proposed to bestow upon his devisees. He speaks of the codicil as an "amendment" to his will, and such, indeed, it is. Taking the instrument as a whole, it is to be read and considered precisely as if the provision of Paragraph 4 of the codicil had been attached to the devise in its original form. To arrive at the apparent intent and thought of the testator, we must, as we have already suggested, look at the will as amended in all its parts, reading it in the light of the circumstances attending its making, so far as they are revealed by the pleading demurred to. He appears to have had neither wife nor direct heirs, and was endeavoring to distribute his bounty with a considerable degree of equality to his nearest collateral relatives, one brother and the descendants of his deceased brothers and sisters. His landed property was comparatively small, and the number of his beneficiaries large, being about 70, as the record shows. None of the fractional interests provided for in the will exceeded one ninth, while some did not exceed a one hundred and sixty-second part. He knew that a partition or division of the land in kind was impracticable, and that such partition could not be effectively accomplished except by sale. Several of his beneficiaries were minors. It may well have been that he believed that the natural increase in the value of the property and the advance toward maturity of his minor devisees made the postponement of sale and partition for a few years a precaution which would serve the best interests of all concerned. Such provision, if otherwise lawful, was clearly not unreasonable. And this, we think, is the sale which the testator intended by the provision in the codicil to postpone. Such conclusion is entirely consistent with the testamentary language employed; and it is, moreover, a well-established rule that, if any testamentary provision be open to two constructions, one of which would render it void or inoperative, and another which would render it valid, the latter is always to be taken and the former rejected, and, wherever it is reasonably possible, effect will be given to every clause and word of the writing. We have, then, to ask whether a provision of a will temporarily postponing the sale and partition of lands which the same instrument gives to two or more beneficiaries in common is so repugnant to the estate devised that it must be held void. That there are authorities which so hold, we think will have to be admitted, but, in our judgment, the greater weight supports the other view. Such a provision in a will is not in restraint of alienation in the true sense of the word, for each tenant in common may convey his share at pleasure. Nor does it prevent a beneficial enjoyment of its profits. Hunt v. Wright, 47 N.H. 396. The law does not inhibit conditions upon the conveyance or devise of a fee so long as such conditions are not of a character to destroy or...
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