Rench v. Rench

• Decision Date: 14 December 1918
• Docket Number: No. 32446.,32446.
• Citation: 169 N.W. 667,184 Iowa 1372
• Parties: RENCH v. RENCH ET AL. (MACK, INTERVENER).
• Court: Iowa Supreme Court

184 Iowa 1372

169 N.W. 667

RENCH

v.RENCH ET AL. (MACK, INTERVENER).

No. 32446.

Supreme Court of Iowa.

Dec. 14, 1918.

Appeal from District Court, Calhoun County; M. E. Hutchison, Judge.

Suit in partition of land, formerly owned by Charles D. Rench, who died testate. The controversy is between devisees of the will and involves a construction thereof. The trial court entered decree awarding to the widow one-third thereof and to the only child of the testator the remaining two-thirds. Harry Delbert Rench, the contingent devisee, appeals. Affirmed.Gray & Gray, of Rockwell City, for appellant.

S. A. Frick and E. C. Stevenson, both of Rockwell City, for appellees Elma Rench and Elma Mack.

I. E. Dougherty, of Rockwell City, guardian ad litem, for appellee Bernadine Etta Rench.

EVANS, J.

The will in question contained the following provisions:

“1. I direct that all my debts and the expenses of my last sickness and funeral, if any, be paid.

2. I give to my beloved wife, Elma Rench, in lieu of dower and distributive share under the statute, the use and income from all the rest, residue and remainder of my property, of all kinds, so long as she may remain a widow. I also give her, during such time, full right and power to sell and convey any or all of such property it and when necessary for the support and proper provision for herself and our child or children.

3. If my said wife shall remarry, then the share of the capital stock of the Farmers' Savings Bank of Lavinia, Iowa, and the two shares of the capital stock of the Lavinia Elevator Company of Lavinia, Iowa, which I own, shall go to Harry Delbert Rench, the son of my brother Henry T. Rench, and the income from one-half of the remainder of my property then undisposed of shall go to my said wife during her natural life, in lieu of dower and distributive share, and the income from the other half shall go to our daughter, Bernadine Etta Rench, if living, until she shall reach her majority, and then one half of said property shall vest in her absolutely and the other half shall go to her upon her mother's death. Should our said daughter be dead, without issue, then the share that would go to her shall go to my said nephew. This provision for my said wife is not intended to prevent her from remarrying, but is made with the thought that so long as she shall remain a widow my property should support her, and, if she should remarry, our daughter might not find it pleasant to remain at home with her mother and her new husband.

4. Should my said wife not remarry, upon her death, the shares of stock described in the next paragraph above, third, shall go to my said nephew as provided in said paragraph, and the remainder of my property then remaining undisposed of shall go to my said daughter or her issue, if any. If she should be dead without issue, the whole shall go to my said nephew.

5. To recapitulate in a measure, it is my will that whatever property may remain undisposed of at the death of my wife, except said shares of capital stock, whether remarried or not, shall be the property of our said daughter, if living, or of her issue, if any, if she be dead; and, if she be dead without issue, then it shall all be the property of my said nephew. * * *”

From the foregoing it will be observed that, if the widow had accepted under the will and had remained a widow, she would have taken a life estate in the land, and the only child of the testator, if living, would take the remainder, with a possible contingent remainder to Harry Delbert Rench. If the widow had accepted under the will and remarried, then she would have taken a life interest in one-half of the real estate, with a remainder over to the child, if living, and the child would take the other half of the land subject to certain contingencies. On the question of remarriage of the widow, the will took account of both contingencies of: (1) remarrying, and (2) not remarrying.

[1] The testator failed, however, to take account in his will of the contingency of nonacceptance of the provisions of the will by the widow. What happened was that in December, 1916, the widow filed her election to take her distributive share, and thereby to reject the provisions of the will. In March following this suit was instituted. After the beginning of this suit, and while it was pending in the district court, in May, 1917, the widow remarried. Because paragraph 3 of the will deals with the contingency of remarriage, and disposes of the property otherwise than as provided in paragraphs 2 and 4, and because the widow has remarried, some confusion has crept into the argument by the assumption that two-thirds of the real estate not included in the...