Rice v. Rice

• Court: Iowa Supreme Court
• Writing for the Court: EVANS, J.
• Citation: Rice v. Rice, 147 Iowa 1, 125 N.W. 826 (Iowa 1910)
• Decision Date: 09 April 1910
• Parties: EMILY M. RICE ET AL., Appellants, v. W. I. RICE ET AL., Appellees

125 N.W. 826

147 Iowa 1

EMILY M. RICE ET AL., Appellants, v. W. I. RICE ET AL., Appellees

Supreme Court of Iowa

April 9, 1910

Appeal from Mahaska District Court.--HON. B. W. PRESTON and HON. W G. CLEMENTS, Judges.

SUIT in equity for the partition of four hundred and sixty-four acres of land. There was a decree from which plaintiffs appeal.--Reversed and remanded.

Reversed and remanded.

John F. & Wm. R. Lacey, for appellants.

W. H Keating, Bolton & Bolton, and Bowen & Alberson, for appellees.

EVANS J. SHERWIN, J., dissenting in part. DEEMER, C. J (dissenting).

OPINION

EVANS, J.

This is an action for the partition of real estate formerly belonging to Wm. H. H. Rice. It was brought by his widow, Emily M. Rice, and her son, A. L. Rice; but she has died since the case was decided in the district court, and her son and administrator, A. L. Rice, has been substituted as plaintiff. In 1889 Wm. H. H. Rice made a will, by the terms of which he devised to his wife, Emily M. Rice, one-third of all the real estate of which he might died seised in lieu of her statutory share therein. In the seventh clause of said will he bequeathed to his daughter, Mrs. Ella J. Cochran, eighty acres of land "free from any lien or indebtedness whatever," and by the eighth clause of said will he bequeathed to his son Wm. I. Rice another eighty acres of land "free from any lien or incumbrance whatever." Both of these tracts of land were specifically described, and together they constituted the tract spoken of in the record as the one hundred and fifty-nine acres lying south of the east and west road." At the time the will was made, and at the time of the testator's death, he also owned what was known as the "homestead farm," consisting of two hundred and forty-four acres just north of the road in question, and separated from the one-hundred-and-fifty-nine-acre tract by such road. The tenth clause of the will was as follows: "I hereby give and bequeath all the rest and residue of my estate, both real and personal not heretofore bequeathed, to my said children, Mrs. Ella J. Cochran, Wm. I. Rice, and Abraham L. Rice, in equal shares, hereby intending to vest in my last-named children share and share alike, all the rest and residue of my estate in fee simple absolutely not heretofore conveyed to my legatee." Ella J. Cochran and Wm. I. Rice were children by a former wife, while Abraham L. Rice was his son by his then wife, Emily M. Rice. In the twelfth clause of the will this was said: "My beloved son Abraham L. Rice being the only son of my wife Emily M. Rice and the heir to the estate by me hereby bequeathed to her is the reason why I make no further provision for him than I have in this my last will and testament." No change was ever made in this will, but on the 19th of March, 1900, the testator executed and delivered to Ella J. Cochran and Wm. I. Rice separate warranty deeds, conveying to each of them the specific land that was bequeathed to them by the seventh and eighth clauses of his will. On the same day that these two conveyances were made, Ella J. Cochran and her husband conveyed by warranty deed to Wm. I. Rice the eighty that had just been conveyed to her by her father. In December, 1892, Wm. H. H. Rice executed and delivered to Wm. I. Rice a writing wherein he referred to his will of 1889 and the bequest of the eighty acres therein described to Wm. I. Rice, and agreed that, in case the purpose of his will was not so carried out as to give Wm. I. Rice the eighty devised to him, the value of the improvements placed thereon by said son was to be a claim against his estate, and it was further said therein: "But if said W. I. Rice receive said land by bequest as contemplated and intended and provided in my said will then this agreement shall become void and of no effect either in law or equity." The wife, Emily M. Rice, did not join in the deeds from her husband to Ella J. Cochran and Wm. I. Rice; and it is conceded that she retained her statutory interest in the land at the time suit was brought, she having declined to take under the will. The widow's share in the two tracts named were set apart from the two-hundred and forty-four-acre tract and included the buildings, and, by taking her interest in the one-hundred and fifty-nine-acre tract from the two-hundred and forty-four-acre tract, two-thirds of the residue of which was given to A. L. and W. I. Rice and Mrs. Cochran by the will, A. L. Rice was compelled to contribute to the satisfaction of the widow's interest in the one-hundred and fifty-nine-acre tract.

The appellants claim that the widow had the right to take her statutory interest in the one-hundred and fifty-nine-acre tract from that tract, and that the same should be set apart to her without reference to her interest in the land north of the road; but, if that is not done, that her share of the one hundred and fifty-nine acres should be charged against only the interests of Wm. I. Rice and Ella J. Cochran in the two-hundred and forty-four-acre tract.

At common law it was the general rule that the widow was entitled to have her dower assigned in the several parcels in which she held the same, and the only exception to this rule was made in specific instances when the husband died seised; and in O'Ferrall v. Simplot, 4 Iowa 381, we held that, when the husband had conveyed one of several parcels to which dower attached, the widow could not be compelled to take from one parcel alone. The decision in that case rests largely upon the thought that the widow should not be required to take in such way as to endanger her interest, and such is undoubtedly the law; but in subsequent cases this court held that the widow's interest might be assigned in one tract, when it could be done without injury to such interest. Montgomery v. Horn, 46 Iowa 285; Jones v. Jones, 47 Iowa 337. It is true that in both of the cases just referred to the husband died seised of the several tracts; but, as the statute (Code, section 3366) provides that "one-third in value" shall be set apart to the widow, we see no reason why the interest in several tracts may not be assigned from so much of one or more tracts as will in fact constitute one-third in value of the whole. If this can be done without in any way diminishing the estate of the widow, she surely can not complain.

II. That Ella J. Cochran and W. I. Rice acquired title to the land described in the seventh and eighth clauses of the will by conveyance, and not through the will, can not be questioned. The execution of the deeds constituted a satisfaction of the will, and thereafter there was no property to pass under said clauses. Hall v. Hall, 132 Iowa 664; In re Will of Miller, 128 Iowa 612, 105 N.W. 105; Davis v. Close, 104 Iowa 261, 73 N.W. 600. This is in accord with the contention of appellants, and is conceded by appellees. We are therefore relieved of the necessity of construing paragraphs seven and eight of the will. We see no way, however, to avoid giving effect to these conveyances strictly in accord with their terms. They were warranty deeds with full covenants. So far as the estate itself and the beneficiaries of the will are concerned, these deeds carried to the grantees the full and complete title to the tracts therein described. Only the widow can ignore them. And she is in no position to do so if her "one-third in value" can be set apart without prejudice to her in the remaining real estate owned by the decedent at the time of his death. The devisees of the will can stand in no better position than the testator himself occupied after making such conveyances. If the warranty deeds were complete and binding as to him, they are clearly so as to his devisees. It is argued that the remedy of grantees would be an action for damages for breach of covenants, and that they could recover therein only nominal damages, because the deeds were executed as a gift of the land. But the grantees are not bound to resort to an action for damages. We see no ground for holding that they may not maintain their possession and ownership under their deeds and in accordance with the terms thereof, subject only to the contingency that the widow might resort to the conveyed lands if necessary to the protection of her rights. Surely, if the grantees were purchasers for value, equity would protect them in their purchase to the extent that it would require the widow to take her one-third value in the remaining lands if it could be done without prejudice to her. We see no logical way of escape from applying the same rule, even though the conveyances were intended by the grantor as completed gifts. Even then the form of the conveyance must be considered as evincing the intent of the testator that the widow's share should be taken in the remaining lands, if possible. The devisees of the estate are in no position to ignore the deeds. We must hold, therefore, that the grantees in the deeds in question as between them and their grantor, and as between them and his estate and its beneficiaries, took full title in accord with the terms of the instruments. It being made to appear, also, that the widow can take her share out of the remaining lands without prejudice to her, it follows that she must be required to do so. This was the result reached by the trial court at this point, although reached by a different course.

The question has been argued whether the devise contained in the tenth clause of the will was a specific devise. The question is a debatable one, but, in the view we take of the case, we have no occasion to determine it. Even if it should be regarded as a specific devise, it could not change the effect of the warranty deeds referred to. We hold that the residue of the two hundred and forty-four acres over...