Shipley v. Shipley

• Citation: 187 Iowa 1295,175 N.W. 51
• Decision Date: 19 December 1919
• Docket Number: No. 32881.,32881.
• Parties: SHIPLEY v. SHIPLEY ET AL.
• Court: United States State Supreme Court of Iowa

187 Iowa 1295

175 N.W. 51

SHIPLEY

v.SHIPLEY ET AL.

No. 32881.

Supreme Court of Iowa.

Dec. 19, 1919.

Appeal from District Court, Cedar County; F. O. Ellison, Judge.

On February 14, 1918, plaintiff instituted suit against her nonresident husband for separate support and maintenance, and also that of their daughter, and for custody of the latter. She prayed that the costs of the suit, including attorney's fees and temporary support, be allowed, and, on final hearing, for permanent support of $100 per month; that defendant W. B. Piatt, trustee of an estate left by the husband's mother, deceased, be ordered to make payment thereof from the income derived from the trust estate; that a writ of attachment be issued; and for such other and further relief as may be equitable. The husband was served with notice by publication only. A writ of attachment was issued and the trustee duly served with notice of garnishment. Default was entered against the husband. The trustee answered. Hearing was had on the allegations charging desertion, and praying relief against the husband, April 1, 1918, and decree was entered granting plaintiff separate support for herself and daughter, with custody of the latter, $400 for such support up to that time, $100 per month thereafter, and $200 attorney's fees and costs, and ordering that the same be paid from any income from the trust estate in the trustee's hands at the time of the garnishment, and hearing of the issues raised by the answer of the trustee and amendments thereto were postponed, and defendant Shipley's interest in the funds now or thereafter coming into the trustee's possession subjected to the payment of the above sums. Further hearing was had June 12, 1918, and on August 14th of the same year a decree was entered, finding the amount of income in the trustee's hands sufficient to pay all sums above specified, with $400 for support since April 1, 1918, $200 additional for attorney's fees and costs, that the amounts in the trustee's hands were sufficient to pay all said sums, and ordering the trustee to pay same to the clerk of court for the use of plaintiff, and that the trustee take credit for said sums so paid in his accounting as trustee, and that, from the income coming into his hands thereafter, the trustee pay to said clerk for the use of plaintiff the installments thereafter accruing, to wit, the sum of $100 per month. All said payments to be made by said trustee were decreed proper charges against the income of the trust estate, and that the trustee be entitled to credit therefor as against the cestui que trust in the accounting of said trustee. The court further found that the trustee was garnished under the writ of attachment issued in this cause, and was also made party defendant hereto, that this decree adjudicates all issues between the parties, and that the defendant has failed to sustain his plea of abatement. The trustee, W. B. Piatt, appeals. Affirmed.C. O. Boling, of Tipton, for appellant.

W. G. W. Geiger, of Tipton, and C. J. Lynch, of Mechanicsville, for appellee.

LADD, C. J.

Plaintiff was married to defendant Shipley February 2, 1910. There was born to them about a year later a daughter, Helene by name. In a decree entered April 1, 1918, he was found to have deserted his wife, and she entitled to the custody of the daughter, then about seven years old, and the separate support and maintenance.

[1] As service was by publication, personal judgment might not have been rendered against him for support. Rea v. Rea, 123 Iowa, 241, 98 N. W. 787;Johnson v. Matthews, 124 Iowa, 255, 99 N. W. 1064.

[2] Can allowance for separate support of the wife be taken from the nonresident husband's property or interest therein, found in this state, by decree subjecting same to the payment thereof? Shipley's mother, then a widow, died testate April 16, 1905, leaving a will which was duly admitted to probate, and, after directing that all debts and funeral expenses be paid, did “give, devise and bequeath unto my only son and child, Hermon Everett Shipley, all of my property, real, personal and mixed, wherever situate, for and during his natural life only, giving to him the full use and control of the same during his life. I expressly direct that he shall have no power to sell, assign, mortgage, or incumber any of said property, nor shall he have any right to sell, assign, mortgage or incumber any of the interest, income, rents, or profits arising from any of said property. Neither shall he have any right to in any manner convey his life interest in said property. The intention being that he may have the interest, use benefit, or rents of the same each year during his natural life.” It further provided that, in event of the son's death, one-third should go to widow and two-thirds to child or children; if without child or children, one-third should go to widow and remainder to testatrix's brother and sister, and all to said brother and sister, if no wife or child should survive the son, but if child or children survive him and no widow, all should go to child or children. W. B. Piatt, brother of testatrix, was nominated executor with complete power of disposition of any and all property, and was also named as trustee with authority to take charge of all the moneys and property of the estate upon settlement by the executor. Should the trustee resign or die, the district court was authorized to appoint another trustee in his stead. A codicil was executed October 17, 1904, withdrawing this sentence from the paragraph quoted, “giving to him full use and control of the same during life,” and adding that--

“In order that no misinterpretation may be placed upon any language contained in my last will, I direct that my son, Hermon Everett Shipley, shall not have the custody or control of any of my property. It is my will that he is only to receive the rents and income thereof from the trustee, subject to all of the provisions stated in my will.”

Another clause conferred on the trustee “full power and authority to contract, lease, assign, sell, or convey any or all of my property on such terms and at such times, and in such a manner as to him may seem best, without any application to or approval by any court.”

It will be noted that, though the trustee is given complete control of the estate, the entire income is subject only to such deductions as may be required for taxes, expenses of administration, and repairs, and the remainder is to be paid to the beneficiary. The estate consisted of a farm of 320 acres in Sac county, another of 160 acres in Emmet county, two dwellings in Tipton, and one dwelling in Des Moines, and bank and other stock, notes, and the like, amounting to about $7,000. The evidence indicated that a net income of at least $2,500 per annum will be derived from the property, beginning in 1918. The petition made both the husband, Shipley, and the trustee, parties to the suit, and therein alleged, in addition to grounds for separate maintenance, that Piatt was trustee, that he had in his hands and would receive the income from the said estate, for the defendant Shipley, and prayed that the trustee “be ordered and directed to make payment from the income in his hands and thereafter coming into his hands, the allowance awarded to plaintiff” and “for other and equitable relief.” Notice thereof, including the relief prayed as against the income payable to Shipley, was served on Shipley by publication, and the trustee appeared and answered. Default was entered against Shipley, and, on hearing, decree was entered April 1, 1918, finding plaintiff entitled to separate maintenance, the custody of the minor child, fixed the attorney's fees to be paid, and the allowance for support to which the wife was entitled from her husband. Further hearing of the issues raised by the answer of the trustee was postponed, until June 12, 1918, when evidence bearing on these issues was adduced and a decree entered August 12th following, fixing the entire amount of fees for plaintiff's attorneys at $400, allowing for support prior to April 1, 1918, $400, and $400 since that time, and directing the trustee to pay to the clerk of the court for her support thereafter the sum of $100 per month, on the 1st day of each month, and that the trustee be credited in his accounting for the sums so paid, including the costs. The correctness of this order, only, is challenged; the right to separate maintenance being conceded.

The point necessarily involved is whether the court might enter such a decree against the nonresident husband on service by publication. The trust estate, as well as any income derived or to be derived therefrom, was within the territorial jurisdiction of the court entering the decree, as was also the trustee. The latter was indifferent, legally, as between the parties, and might have credit for all moneys paid out under the court's order in his accounting as trustee. The income was brought within the jurisdiction of the court quite as completely as though attached through garnishment of the trustee. The only advantage possible through the levy of a writ of attachment would be in holding the accumulated income in the trustee until the rights of the parties were adjudicated. This appears from Twing v. O'Meara, 59 Iowa, 326, 13 N. W. 321, where the wife, in bringing suit for divorce, in Wapello county, sued out a writ of attachment for $2,200 and caused the same to be levied on land in the husband's name in Scott county. Service of notice was had by publication, and, on final hearing, the decree entered vested her with title to this real estate, found to be of the value of $600. Her title thereto later was challenged but sustained, the opinion declaring that--

“The court would have been justified in decreeing the property to Elizabeth Twing as alimony if no attachment had been procured. There was no necessity whatever for the attachment, except to prevent the defendant in...