Schoonover v. Osborne
| Decision Date | 02 October 1920 |
| Docket Number | 33041 |
| Citation | 187 N.W. 20,193 Iowa 474 |
| Parties | AMELIA J. SCHOONOVER, Appellee, v. LEWIS D. OSBORNE et al., Appellees; W. D. SHEEAN, Intervener, Appellant |
| Court | Iowa Supreme Court |
OPINION ON REHEARING MARCH 14, 1922.
Appeal from Jones District Court.--MILO P. SMITH, Judge.
ACTION in equity, to subject property to the payment of a judgment. The facts are stated in the opinion. There was a decree in the court below for plaintiff, and intervener appeals.
Reversed.
C. J Lynch and C. B. Paul, for appellees.
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I. This is an action in equity, to subject the income from a trust estate created by the will of Ella O. Stover, deceased, in favor of her brother Lewis D. Osborne, to the payment of a judgment against him in the sum of $ 34,017.49. Ella O. Stover died testate April 9, 1915. By her will she devised an undivided one third of her property, real and personal, to the Schoonover Trust Company, of Anamosa, Iowa, for the use and benefit of Lewis D. Osborne and Genevieve Osborne, his daughter, with full power on the part of said trustee to sell, convert, invest, and reinvest the said estate, and to receive and collect the income and principal thereof. The will then directs the trustee to pay one half of the net income from said estate semiannually to Lewis D. Osborne, and the remaining one half to Genevieve D. Osborne, so long as they, or either of them, shall live. The remainder is devised to the heirs of Genevieve Osborne.
The judgment owned by plaintiff was obtained many years prior to the death of Ella O. Stover. Testatrix, at the time of her death, was seized of considerable real property. Some time thereafter, partition proceedings were begun by her husband against the Schoonover Trust Company, which was also the executor of her estate, and on a stipulation by the parties, the real property was sold, and the proceeds turned over to the trustee. On April 10, 1915, the day following that on which testatrix died, an execution was issued and levied upon the interest of Lewis D. Osborne in her estate. The will was admitted to probate in May, 1915, the exact date not appearing in the abstract. On May 19, 1915, plaintiff commenced this action in equity, setting up in her petition the interest of Lewis D. Osborne in the estate of his sister, and asking that her judgment be established as a lien against such interest, and that same be applied in payment and satisfaction thereof. Original notice of the commencement of this action was served upon the Schoonover Trust Company on May 20th, and upon Lewis D. Osborne, May 24, 1915. On September 14, 1915, the defendant Lewis D. Osborne appeared by counsel, and was given 15 days to plead. Later, this time was extended to October 6, 1915. On October 29, 1915, he filed answer, disclaiming any interest in the property sought to be subjected to the payment of plaintiff's judgment, and averred that prior thereto he had, in a written instrument, filed in probate, renounced the bequest made by the will of his sister in his favor. The written renunciation was filed in probate October 16, 1915.
On November 9, 1915, W. D. Sheean was appointed guardian of Genevieve Osborne, who was a minor, and on January 3, 1916, filed a petition in intervention herein on behalf of his ward, setting up the renunciation by Lewis D. Osborne of the bequest, and alleging that same passed under the will to her, and asking that her right be decreed thereto. To this petition in intervention, plaintiff filed answer in three divisions, alleging acceptance of the bequest by Lewis D. Osborne; that his pretended written renunciation was filed after the execution was levied and became a lien upon his interest in the estate; and that same was void and without effect, as against plaintiff. Plaintiff also set up a plea of estoppel.
The substance of the plea of estoppel is as follows: That the will of Ella O. Stover was admitted to probate in May, 1915; that, on May 24th, plaintiff's lien upon the interest of Lewis D. Osborne therein attached thereto; that, at the time of the levy of said execution and the commencement of this action, plaintiff indulged and relied upon the presumption that, as the provisions of the will were favorable to him, Lewis D. Osborne had accepted, or would accept, the same; that the said Osborne made declarations recognizing and accepting the provisions of said will, and by his acts and conduct evinced his acceptance thereof; that, well knowing that plaintiff was proceeding in reliance upon the presumed acceptance of the provisions of the will, Lewis D. Osborne permitted the proceedings to continue for a period of six months, knowing that plaintiff was incurring expense preparing the case for trial; and that during said time Osborne employed counsel, and at the September term of court, appeared and obtained an extension of time in which to file answer; that he made no attempt to renounce the bequest until in October, 1915; and that the said renunciation was for the sole purpose of defrauding and defeating plaintiff in the enforcement of his lien, and was collusive for that purpose.
Plaintiff further alleged that she would not have incurred large expense, had it not been for her reliance on the conduct of Osborne and the matters and things set forth in this division of her answer, and that, by reason thereof, the said Osborne was precluded and estopped to renounce the said bequest, as against the claims and lien of appellee.
The above matters are not pleaded as an estoppel against appellant, nor could they so operate. If, however, Lewis D. Osborne estopped himself from renouncing the bequest, as against the lien of appellee's judgment, then her claim is paramount and superior to any claim by appellant, as guardian of Genevieve Osborne thereto.
It is universally presumed, from the beneficial character thereof, that a legatee will accept a bequest to him, if no obligation or burden is imposed upon him by reason of such acceptance. The rule that a legatee may reject or renounce a bequest made for his benefit, even without casting a burden upon him, is quite as universally recognized as that of presumed acceptance. The more difficult question here is: Did the renunciation of Lewis D. Osborne, evidenced by the written instrument filed in probate after the levy of the execution and the commencement of this action to subject his interest in the trust estate to the payment of appellee's judgment, render the levy ineffectual and defeat her claim? Much reliance is placed by counsel for appellee upon our holding in Shedenhelm v. Cafferty, 174 Iowa 195, 156 N.W. 340. But a careful reading of the opinion in that case reveals a clear distinction between the facts there involved and those with which we are concerned in the case at bar. There was no renunciation in the Shedenhelm case, but an attempt, by waiver, to pass the interest of a devisee to the mother. In the case at bar, Lewis D. Osborne filed a definite and positive renunciation of the bequest, both in the probate court and in this action. This renunciation is binding and conclusive upon him: that is, by this act he completely divested himself of any and all interest in the income from the trust estate or of the benefits of the bequest.
Counsel have not called our attention to any case squarely in point. We have held, however, that a renunciation by a devisee defeats the right to the collection of a succession tax. In re Estate of Stone, 132 Iowa 136, 109 N.W. 455; In re Estate of Wells, 142 Iowa 255, 120 N.W. 713.
We have been able to find but few decisions in other jurisdictions touching the main question, but with one or two possible exceptions, such as have been brought to our attention, they hold that the right of renunciation is superior to the right of creditors. Bradford v. Calhoun, 120 Tenn. 53 (109 S.W. 502); Bradford v. Leake, 124 Tenn. 312 (137 S.W. 96); Strom v. Wood, 100 Kan. 556 (164 P. 1100); Albany Hospital v. Albany Guardian Soc., 214 N.Y. 435 (108 N.E. 812); Tarr v. Robinson, 158 Pa. 60, 27 A. 859. The Supreme Court of Tennessee, in Bradford v. Calhoun, supra, said:
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