Sires v. Melvin

• Decision Date: 27 September 1907
• Citation: 113 N.W. 106,135 Iowa 460
• Parties: J. H. SIRES, Appellant, v. RUTH ALICE MELVIN, Appellant. W. S. THROCKMORTON and REED THROCKMORTON, EXr's, Etc., of MORFORD THROCKMORTON, SR., Deceased, JOHN R. THROCKMORTON, I. N. THROCKMORTON and SARAH CROSS, Appellees
• Court: Iowa Supreme Court

113 N.W. 106

135 Iowa 460

J. H. SIRES, Appellant, v. RUTH ALICE MELVIN, Appellant. W. S. THROCKMORTON and REED THROCKMORTON, EXr's, Etc., of MORFORD THROCKMORTON, SR., Deceased, JOHN R. THROCKMORTON, I. N. THROCKMORTON and SARAH CROSS, Appellees

Supreme Court of Iowa, Des Moines

September 27, 1907

Appeal from Lucas District Court.-- HON. M. A. ROBERTS, Judge.

THE statement of facts and the first paragraph of the following opinion are adopted by me without alteration from an opinion which was prepared by Mr. JUSTICE DEEMER, but, owing to a difference of views among members of the court upon the question discussed in the last paragraph, was not filed.-- WEAVER, C. J.

Originally this was a suit to partition certain real estate, wherein plaintiff claimed to be the owner of one-third thereof in fee as the surviving husband of Alice Sires, nee Dusenberry deceased. Thereafter he made the executors of John R Throckmorton, deceased, I. N. Throckmorton, Sarah Cross, and Ruth Alice Melvin parties defendant, and pleaded that one Morford Throckmorton, Sr., gave certain lands in Lucas county, Iowa to Morford Throckmorton, Jr., and placed him in possession thereof many years ago, and that said Morford Throckmorton, Jr., acquired title thereto by parol gift and adverse possession. It is further alleged that said Morford Throckmorton, Jr., died seised of said lands, and that upon his death the same passed to his widow and four children, one of whom was Alice Sires, plaintiff's wife. Ruth Alice Melvin answered, and also filed a cross-petition. In this she denied that plaintiff had any interest in the lands, averred that Morford Throckmorton, Sr., deceased, was the owner of the lands in controversy at the time of his death. This said Throckmorton, Sr., willed and devised the lands to his grandchildren, John R. and Isaac N. Throckmorton, Alice Dusenberry, and Sarah Cross for life, and that upon the death of each the fee should pass to their children. She further alleges that she is the adopted child of Alice Sires, and as such entitled to take under the will; her mother having died in December of the year 1904. And she asked that plaintiff's petition be dismissed, and her title to an one-fourth interest in the lands be established under the will of Morford Throckmorton, Sr. The executors of the Throckmorton, Sr., will denied practically all the allegations of plaintiff's petition and of the cross-petition of Ruth Alice Melvin, and they asked for a construction of the will. The other defendants also answered denying that either plaintiff or Ruth Alice Melvin had any interest in the lands, asked for the establishment of their life estate in and to the lands, and of an estate in fee in their children. Upon these issues the case was tried to the court, resulting in a finding that neither plaintiff nor Ruth Alice Melvin had or have any interest in the lands; that the executors hold the land under the will of the senior Throckmorton, for the use and benefit of the surviving children of the junior Throckmorton, to-wit, John R. and I N. Throckmorton and Sarah Cross for life; and that, upon the death of each, the executors should convey an one-third interest in fee to their children. Plaintiff and Ruth Alice Melvin each appeal.-- Reversed.

Reversed.

W. B. Barger, for appellant, Sires.

Stuart & Stuart, for appellant, Melvin.

O. A. Bartholomew, for appellees.

WEAVER C. J. DEEMER, J. (dissenting).

OPINION

WEAVER, C. J.

Save upon two propositions, the facts are not in dispute. It appears that in March of the year 1882 Morford Throckmorton, Sr., who resided in Pennsylvania, made a will, whereby he devised one hundred and sixty acres of land then claimed to have been owned by him in Lucas county, Iowa to the four children for his deceased son, Morford, Jr., during their natural lives; the title being devised to his executors in trust, who were to hold and manage the same for the use of these children. It was also provided in the will that, if any of these four children should die, an one-fourth interest in said land should pass to the child or children of the one so dying, and that the executors should convey the interest to such child or children. Morford Throckmorton, Sr., died on the 1st day of March, 1884, and his will was admitted to probate in Pennsylvania, on or about March 4, 1884. This will was also probated in this State on or about September 4, 1890. Alice Dusenberry, wife of plaintiff, Sires, was one of the four children of Morford Throckmorton, Jr., and she died December 25, 1904, leaving plaintiff, her surviving husband, and it is claimed Ruth Alice Melvin, an alleged adopted daughter, as her only heirs. The adoption of Ruth Alice Melvin is said to have been made August 9, 1890, pursuant to the laws of this State. Plaintiff claims that Morford Throckmorton, Sr., gave the lands in controversy to his son Morford Throckmorton, Jr., and that the son held title thereto in virtue of this gift and by reason of adverse possession, and that upon his death one-fourth thereof passed to his wife, and that upon her death he took at least an one-third interest in said one-fourth. This claim of title in Morford Throckmorton, Jr., is denied by all other parties to the litigation. Ruth Alice Melvin claims that, as the legally adopted child of Alice Sires, she took an one-fourth interest in the land, upon the death of her foster mother, in virtue of the will of Morford Throckmorton, Sr., and that her foster father took nothing; while the other defendants, aside from the executors, who are the living children of Morford Throckmorton, Jr., deceased, claim that the executors held the land in trust for their use and benefit during life, and that upon their death, Alice Sires dying without children, the children of each of them became entitled to one-third in fee of the lands described in the will of which Morford Throckmorton, Sr., died seised.

As both the will of Morford Throckmorton, Sr., and the articles of adoption are important to a determination of the case, we have set out the material parts of each. By the terms of the will it is provided:

Item. I give and devise to my executors hereinafter named, a tract of land in the county of Lucas, Warren township, State of Iowa containing one hundred and sixty acres, their choice of the two quarter sections of my land in said township to hold and pay the taxes and superintend the same in trust and for the use of the four children of my deceased son Morford, and, at the death of each one, to convey the interest of such deceased child or one-fourth of the said quarter section to his or her children if any they should leave surviving, if not to hold same until all should die or the last one, and then to convey to the child or children of such one so dying, and if all should die without leaving children, then to sell said land and divide the proceeds among my children, and their heirs, and this is to be the full share after what I have advanced to my deceased son, of his interest in my estate.

The articles of adoption are signed by Mary E. Jones, Lou Dusenberry, and Alice Dusenberry, and read as follows:

Know all men, by these presents: That I, Mary E. Jones, of the county of Lucas and State of Iowa am the mother and only legal surviving parent of Ruth Jones, of said county and State, who was born on the twenty-second day of December, 1884, and now lawfully in my care (her father being separated from me), and for whose wants I am now providing, do hereby consent to and do give my said daughter to Lou and Alice Dusenberry (husband and wife) of Lucas county, State of Iowa for the purpose of adopting as their own child, and I do hereby declare that the name by which the child shall hereafter be called and known shall be Ruth Alice Dusenberry. And we, Lou Dusenberry and Alice Dusenberry, his wife, of the county of Lucas and State of Iowa each and both of us competent to make a will do hereby consent to receive said child, Ruth Jones, for the purpose of adopting her as our own child and conferring upon her all the rights and privileges and responsibilities which would pertain to her had she been born to us in lawful wedlock, and that hereafter said child shall be called by the name of Ruth Alice Dusenberry. Witness our hands this 9th day of August, 1890.

From this statement it is apparent that plaintiff, who married Alice Dusenberry, nee Throckmorton, must show that Morford Throckmorton, Jr., obtained title to the land before his death in virtue of a parol gift from his father or by reason of adverse possession. This is the first question of fact and law in the case, and, if it be found that the junior Throckmorton held title to the land, when he died his heirs took under the statute of descent; plaintiff receiving one-third of the interest his wife had, and under certain conditions Ruth Alice Melvin taking the other two-thirds, and the other defendants John R. and I. N. Throckmorton and Sarah Cross each taking an one-fourth in fee. But if the junior Throckmorton had no interest in or title to the land, then the defendants above named each held a life estate, with remainder in fee to their children alone, or with Ruth Alice Melvin, as the case may be. The executors of the will deny that there was a parol gift or title by adverse possession, as also do the other defendants, as we understand it.

After a careful consideration and examination of the testimony, we are satisfied that there was a gift of one hundred and sixty acres of land by Morford, Sr., to his son Morford, Jr., some time in the year 1854, which gift was immediately followed by possession upon the part of the donee and the making of improvements upon the property. Morford, Jr., held possession from the time he took it until his death,...