Schultz v. Brewer, 48105

• Decision Date: 11 November 1952
• Docket Number: No. 48105,48105
• Citation: Schultz v. Brewer, 244 Iowa 21, 55 N.W.2d 561 (Iowa 1952)
• Parties: SCHULTZ et al. v. BREWER et al.
• Court: Iowa Supreme Court

Page 561

55 N.W.2d 561

244 Iowa 21

SCHULTZ et al. v.BREWER et al.

No. 48105.

Supreme Court of Iowa.

Nov. 11, 1952.

E. W. Henke and Boyd G. Hayes, of Charles City, for appellants.

Switzer, Clarke & Emery, of Des Moines, for appelleesHelen Schultz Brewer and Leo J. Schultz.

Max E. Conn and Richard J. Lowther, of Ames, for appelleeMutual Ben. Life Ins. Co. of Newark, N. J.

GARFIELD, Justice.

The three plaintiffs and two of the defendants are sons and daughters of Joseph and Mary Schultz, deceased.The remaining defendant holds a mortgage on the land in controversy executed by defendantHelen Schultz Brewer after her father deeded the land to her.Plaintiffs claim each party other than the mortgagee owns an undivided fifth interest in the land.Defendant Helen claims to be sole owner under the deed from her father.The trial court sustained defendants' motions to dismiss.Of course the motions admitted all facts properly pleaded in plaintiffs' petition.We therefore look to the petition for the facts on which plaintiffs' claim is based.

Sometime before January 22, 1937, Mary Schultz, mother of the parties, sued their father Joseph for separate maintenance.Mary and Joseph entered into a written stipulation of settlement subject to the court's approval in the event separate maintenance was granted.Paragraph 2 of the stipulation recites that defendant(Joseph) had deeded plaintiff(Mary) 80 acres of land and would pay her $35 monthly for her maintenance.The land so deeded to Mary is not now in controversy.

The essential parts of paragraphs 3 and 4 of the stipulation are substantially as follows:

'Three.In lieu of any dower interest which plaintiff has or may hereafter have in any of the property of defendant, in the event plaintiff survive defendant, defendant hereby grants and conveys unto plaintiff the life use of all of his property, after his demise, and after the demise of defendant, if he precede plaintiff in death, plaintiff shall have the use * * * of said property for the remainder of her said life, * * *.Defendant hereby agrees that the remainder, after the expiration of plaintiff's life estate, shall go to the children of the parties in equal proportions, or that she may provide by Will that the children in equal proportions shall have the benefit of such remaining Estate, * * * and this provision shall inure to the benefit of said children as well as to plaintiff.

'Four.In lieu of any dower interest which defendant has or may hereafter have in any of the property, real or personal of plaintiff, in the event defendant survive plaintiff, plaintiff hereby grants and conveys unto defendant the life use of all of her property, after her demise, and after the demise of plaintiff if she precede defendant in death, defendant shall have the use * * * of said property for the remainder of his said life * * *.Plaintiff hereby agrees that the remainder, after the expiration of defendant's life estate, shall go to the children of the parties in equal proportions, or that he may provide by Will that the children in equal proportions shall have the benefit of such remaining Estate, * * * and this said provision shall inure to the benefit of said children as well as to defendant.'(Emphasis added.)

On January 29, 1937, Mary was granted a decree of separate maintenance which, so far as material here, provides in substance: 'that plaintiff have judgment against defendant for separate maintenance in accordance with the * * * stipulation of the parties filed in this cause, which * * * is by reference made a part hereof as fully as though set forth in this decree * * *.And the court finds and adjudges that the parties hereto have not relinquished their respective dower rights and that the survivor of the parties, from the date of the demise of the party preceding the other in death does have a life estate in the property, both real and personal, of such preceding decedent, and the use * * * of all such property as said preceding decedent may die seized of, and that the remainder of such property, after the demise of the survivor, shall go to the children of the parties in equal proportions, and in accordance with the stipulation of the parties in this cause.And it is further hereby expressly adjudged that in the event of failure on the part of either of the parties to this cause to provide for the disposition of the property of said party, as in said stipulation set forth, that the right to enforce the terms thereof shall inure to any child or children of the parties to this cause.'(Emphasis added.)

Plaintiffs alleged that on January 29, 1937, Mary and Joseph made an oral agreement modifying paragraphs 3 and 4 of the stipulation by agreeing that neither relinquished his or her dower rights in the property of the other and that each of the five parties(other than the mortgagee) acquired a fifth interest in the land in controversy by virtue of the written stipulation as orally modified and the decree of separate maintenance.Mary died in August, 1941.Joseph died intestate in December, 1946.Joseph failed to provide for the disposition of the land in question in equal shares among his sons and daughters but deeded it October 28, 1941, to defendant Helen.

Plaintiffs also alleged that after Mary's death Joseph took possession of her property under the provisions of 'said agreement and decree.'What property Mary left at her death does not appear.It is not alleged the land in controversy was ever owned by her.

Allegations of the petition as to accounting by defendant Helen for rents and profits need not be mentioned.

One ground of defendants' motions to dismiss is that the stipulation and decree of separate maintenance do not by their terms vest or establish any right or title to the land in controversy in plaintiffs.The trial court sustained this ground, as well as another.He held the stipulation and decree do not give the parties hereto any interest in property owned by the father in fee simple.

We understand it is conceded the land in controversy was owned by the father both before and after the stipulation and decree were made and was never owned by the mother.

We think the trial court correctly held that neither the stipulation nor decree of separate maintenance gives the sons and daughters any interest in land owned in fee by the surviving parent.Both the stipulation and decree purport to convey only property of the parent first to die.Neither imposes an obligation upon the surviving parent to leave all the property owned in fee by him or her equally among their sons and daughters.

Paragraph 3 is the part of the stipulation which deals with the property of Joseph.(He was defendant in the separate maintenance action.)The conveyance of Joseph's property in paragraph 3 is conditioned upon 'the event plaintiff(Mary) survive defendant' or that 'he(Joseph) precede plaintiff in death.'The life estate to Mary in Joseph's property with remainder to the sons and daughters never became effective because Mary did not survive Joseph but preceded him in death.

Paragraph 4 of the stipulation deals with the property of Mary.It is not here involved because it is not claimed the property in controversy was ever owned by her.However, paragraph 4 is analogous to paragraph 3 and purports to convey Mary's property only 'in the event defendant(Joseph) survive plaintiff' or 'if she...