Seeley v. Seeley

• Decision Date: 06 February 1951
• Docket Number: No. 47757,47757
• Citation: 45 N.W.2d 881,242 Iowa 220
• Parties: SEELEY v. SEELEY et al.
• Court: Iowa Supreme Court

Page 881

45 N.W.2d 881

242 Iowa 220

SEELEY v. SEELEY et al.

No. 47757.

Supreme Court of Iowa.

Feb. 6, 1951.

Senneff & Buck, of Britt, for appellants other than defendant minor and guardian.

E. C. McMahon, and Hutchison & Hutchison, of Algona, for appellee.

Leo J. Cassel, of Algona, for guardian-cross-appellant.

SMITH, Justice.

Nancy Emma Seeley died, a resident of Algona, Iowa, on July 4, 1934. Her husband had pre-deceased her. She left two sons, her only heirs, Frank B. Seeley (then 51) and Burton A. Seeley (48). She left a will, dated June 16, 1934, giving the residence property in Algona to Frank and all the rest of her property in equal shares to her two sons, and revoking all former wills.

Both sons were married. Plaintiff was the wife of Frank, and defendant Joan Kathryn Seeley is their only child. Burton and wife Minna have two children, Alpheus Heisey Seeley and Nana Bigelow Seeley (now Gilmer). All are defendants herein together with the spouses of Alpheus and Nana and the guardian of Joan Kathryn.

Nancy Seeley had executed another will ten days earlier (June 6, 1934) giving the property to her three grandchildren, subject to life estates in her sons, Frank and Burton.

Both instruments were filed with the clerk of the court but neither was admitted to probate. On July 10, 1934, Frank and Burton entered into a written contract in the nature of a family settlement, in which they referred only to the later will, refused to accept under it and united in asking the court to deny probate and to order the fee title of all real estate to go to the three grandchildren in equal shares, subject to a life estate in Frank who agreed to pay taxes and upkeep. The wives did not sign this contract. The evidence indicates the purpose of the contract was to furnish adequate income to Frank for life as he was in poor health.

On the brothers' application the probate court entered an order denying probate of the will, approving the agreement and providing that it be strictly followed in the distribution and division of the assets of the estate. Administration was had. Frank first served as special administrator and later letters issued to Burton on the application of both. Burton administered the estate as intestate and was discharged on December, 1935. No probate notices were served on any one but Frank and Burton.

At the time of Nancy Seeley's death and for some time prior thereto Frank and his family (wife and daughter) lived with her. They thereafter continued to live in the Algona home for approximately two years, later residing in Texas and Florida. During all the time after his mother's death and until his own on September 26, 1948, Frank had the use and income of both farm and city property. Nevertheless he did not always pay taxes or keep the premises in very good repair and Burton contributed substatial amounts to that end.

After Frank's death his widow commenced this partition proceeding, claiming her one-third distributive share or dower in all the real estate, which interest she claims never to have released.

I. Defendants, Burton and wife and children (hereinafter for convenience referred to merely as defendants) deny that any title other than life estate ever vested in Frank and by the same token they deny plaintiff ever had any dower right or has any interest in the real estate now.

The trial court overruled this contention, holding the contract or family settlement was valid; that it constituted a renunciation by the sons of any claim under the will; that thereupon title vested in the two sons as only heirs of their mother and their wives became possessed of inchoate dower rights; that the contract also operated as a conveyance and plaintiff, not having relinquished her dower, is now the owner of one-third of her husband's one-half interest or one-sixth. The defendants appeal from this part of the decree. Their appeal demands a determination as to the legal situation created by the sons' contract, withholding their mother's will from probate and directing devolution to her grandchildren.

II. We do not understand any attack is made here on the validity of the contract though some argument is offered in its defense. There can be no question of the right of a beneficiary to renounce a devise or legacy made for his benefit. Mohn v. Mohn, 148 Iowa 288, 126 N.W. 1127. And such renunciation takes effect as of testator's death, even as against judgment creditors of the devisee. Schoonover v. Osborne, 193 Iowa 474, 187 N.W. 20, 27 A.L.R. 465; Lehr v. Switzer, 213 Iowa 658, 239 N.W. 564; Funk v. Grulke, 204 Iowa 314, 213 N.W. 608. It does not ordinarily constitute an assignment. Coomes v. Finegan, 233 Iowa 448, 7 N.W.2d 729; Myers v. Smith, 235 Iowa 385, 16 N.W.2d 628, 155 A.L.R. 1413. The renounced gift is not subject to inheritance tax. In re Estate of Stone, 132 Iowa 136, 109 N.W. 455; In re Wells' Estate, 142 Iowa 255, 120 N.W. 713.

Nor is there any doubt of the right of the beneficiaries to join in withholding the instrument from probate, and if they are also all the heirs, they may by contract direct distribution of assets and devolution of title contrary both to the provisions of the will and the laws of descent. In re Murphy's Estate, 217 Iowa 1291, 252 N.W. 523; Douglas v. Albrecht, 130 Iowa 132, 106 N.W. 354.

This right to control the direction or distribution when will is not probated is not in the beneficiaries as such but in the heirs. A renounced gift, if the will is probated, passes under the residuary clause if there be one, otherwise it becomes intestate property. Myers v. Smith, supra. However, when will is probated the beneficiaries may agree to distribution in manner different from provisions of will. In re Conner's Estate, 240 Iowa 479, 488, 36 N.W.2d 833. And if all beneficiaries renounce and will is not probated the whole estate of course passes as intestate. In such case the family settlement can only be made by heirs.

This is not in essential disagreement with the decision in In re Estate of Swanson, 239 Iowa 294, 31 N.W.2d 385, 387. While the agreement in that case was among beneficiaries under an unprobated will, they were also the widow and heirs of decedent. The foreword refers to the agreement as 'a settlement agreement among the heirs,' and the opinion clearly states the 'widow and heirs filed resistence * * * in which they set up an agreement that day signed by them providing for settlement of the estate as intestate * * *.' It is apparent that in that case no thought was given as to whether the parties who entered into the agreement were doing so as beneficiaries or as heirs. All interested parties were represented and the agreement was upheld.

We need not speculate upon or determine whether a devisee can, by renunciation, defeat his wife's right of dower in absence of some reinquishment by her. The brothers here never became devisees but remained heirs. It is certain an heir cannot renounce his right as such to take title. That is the one situation in which one cannot refuse title. Coomes v. Finegan, 233 Iowa 448, 7 N.W.2d 729.

III. Defendants argue the contract here was not a renunciation of the will 'but rather a modification thereof by which the beneficiaries mutually agreed in what manner they should take.' They say further that 'title never vested in Frank B. Seeley under either the will or by the rules of descent; * * * the title became fixed by the contract, and plaintiff never acquired any inchoate interest because Frank B. Seeley never acquired any interest in the title.'

This states the heart of defendants' case against plaintiff's claim of dower. They are logically driven to this position. Its unsoundness seems to us apparent. The sons were not 'beneficiaries.' They acquire no interest under the will. It never took effect because never probated. That is defendants' own first 'proposition' and it is of course sound. Section 633.38, Iowa Code 1950, I.C.A. If they also acquired no interest or title by the statutes of descent by what authority or...