Smith v. Harris
| Decision Date | 01 August 1939 |
| Docket Number | 44416. |
| Citation | 287 N.W. 255,227 Iowa 127 |
| Parties | SMITH et al. v. HARRIS et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, O'Brien County; R. G. Rodman, Judge.
Action to partition real estate under claim of title based upon will. From decree construing will as passing title to certain defendants, denying partition and quieting title against plaintiffs, they appeal.
Affirmed.
Where testator devised two-thirds of his realty to his wife and provided that after his wife's death it should go to " my surviving children," but, if there should be no surviving children, then it should go to testator's heirs at law, the remainder to " my surviving children" constituted a " gift to a class," and referred, not to those children surviving testator, but rather referred to those children surviving testator's wife, and hence testator's son who predeceased testator's wife took no part of the realty and, on his death intestate, no interest passed to his widow.
Diamond & Jory, of Sheldon, and Locke & Lampman, of Primghar for appellants.
Selmer G. Larson, of Paullina, and George C. Murray, of Sheldon, for appellees.
Testator Hans Linder Sr., died in 1906, aged 45 years, and survived by his wife, Anna, aged 38 years, and all of his three children, Christ, Alvena and Hans Jr., aged 15, 12 and 6 years respectively. His will, executed five years before his death, was admitted to probate in O'Brien County, and his widow, Anna, elected to take thereunder. Under Items 2 and 3 of said will Anna was given all the personalty and one-third of the realty absolutely. The aforementioned property is not involved in this suit, and the controversy concerns only the other two-thirds of the real estate disposed by the following divisions of the will:
Item 4. " I further give, devise and bequeath to my said wife, Anna Linder, the exclusive use, rental and benefits of the remaining two-thirds, of all the real estate of which I may die seized, or to which I may be entitled, during her natural lifetime, to use as she may see fit, my intention being to furnish a means of ample support for my said wife and my children, during the lifetime of my said wife, and she is hereby authorized and empowered to use the entire amount of said two-thirds of my said real estate, as above set forth, if she finds it necessary to do so to have a comfortable support during her natural lifetime, and the support and education of my children."
Item 5. " After the death of my said wife, if there be any property remaining, of said two-thirds of my real estate, as mentioned in item 4 of this my last will and testament, then it is my will, and I hereby give, devise and bequeath said remaining property to my surviving children, but if there be no surviving children, then said property shall go to my heirs at law, as provided by the laws of the State of Iowa, and if said property goes to my children, then it shall be divided equally among them share and share alike."
The realty consisted of 160 acres of farm land, the home in Paullina, and property in another block in said town. During her life the widow did not dispose of any part of said " two-thirds" interest in said real estate as was her privilege under Item 4. She died intestate in 1930, and the two surviving children, appellees Hans Jr. and Alvena (Harris), inherited her entire estate including the undivided one-third of the realty above described willed her absolutely and not in controversy herein. The other child, Christ Linder, predeceased his mother, Anna. He had died intestate in 1918, without issue and survived by his widow, appellant Vera, who subsequently married appellant, Clarence E. Smith.
Shortly after Anna's death, late in 1930, the surviving children, Hans Jr. and Alvena, had a meeting with Vera at which the will of Hans Linder Sr. was read and Vera was told she had no interest in any of the property. Thereafter Hans Jr. and Alvena handled and dealt with the several properties as their own and subsequently made conveyances of parts of the same to each other and sold a part to a third party. Mortgages were also given upon the farm and the home. This continued until 1936, when a lawyer for the third party purchaser questioned the titles of Hans Jr. and Alvena and they started suit to quiet title against Vera and Clarence Smith. Vera and Clarence countered with this action in partition in which Vera made claim, as the widow of the deceased son, Christ Linder, to his share of the remainder of the undivided two-thirds of the real estate disposed of in Item 5 of his father's will. Parties defendant (appellees) were Hans Jr. and Alvena, their spouses, the purchaser of part of the real estate, one of the mortgagees, and a tenant.
The trial court construed the will as providing for only a contingent remainder to Christ Linder, which was contingent upon his surviving his mother, Anna, and held that since Christ predeceased his mother neither he nor his widow, Vera, had any right, title or interest in said property. There was also a finding that Vera had been guilty of laches and was thereby barred from claiming any interest in the property. We may say now that the conclusion hereinafter reached renders unnecessary the consideration or determination of this question of laches. The decree denied partition and quieted title in Hans Jr. and Alvena against plaintiffs, Vera and husband. From said decree plaintiffs prosecute this appeal.
The decision herein turns upon the judicially ascertained intent of the testator as expressed in the will. Particularly in question is the meaning and effect of Item 5, which reads in part as follows: " After the death of my said wife, * * then it is my will, and I hereby give, * * * said remaining property to my surviving children, but if there be no surviving children, then said property shall go to my heirs at law, * * *."
Appellants contend this remainder vested in the three children at the death of the testator and that the share of Christ passed, upon his death intestate in 1918, to his widow, Vera. Appellees say the remainder was contingent and that by reason of the failure of Christ to survive his mother who was the life tenant no part of the estate ever vested in him. The position of appellants is premised upon the theory that the words of survivorship used in the will are referable to the death of the testator while appellees base their case upon the ground that such survivorship refers to the death of the life tenant.
Unquestionably in this case the remainder " to my surviving children" constituted a gift to a class. Many authorities subscribe to the following rule: " In a gift for life to one, followed by a gift over to the ‘ surviving children’ of the testator, the words ‘ surviving children’ are to be taken as meaning those of the children of the testator who are surviving at the death of the life tenant; and that unless, upon taking the whole will into consideration, the words are plainly used in some other sense, this meaning, which is the ordinary and natural one to be given them, must prevail." Thompson on Wills, 2nd Ed.1936, Sec. 288. Similar expressions appear in Underhill on Wills, First Ed., Sec. 350, and 28 R.C.L., p. 260. Sullivan v. Garesche, 299 Mo. 496, 129 S.W. 949, 49 L.R.A.N.S., 605, differentiates the foregoing rule from the rule governing other situations in the following language, which is quoted with approval in Bates v. Bates, Mo.Sup., 124 S.W.2d 1117, 1121:" * * * if an estate is given by will to the survivors of a class to take effect on the death of the testator, the word ‘ survivors' means those living at the death of the testator; but if a particular estate is given and the remainder is given to the survivors of a class, the word ‘ survivors' means those surviving at the termination of the particular estate."
The rule that survivorship refers to the death of the testator is confined to those cases in which there is no other period to which survivorship can be referred, and " where such gift is preceded by a life or other prior interest, it takes effect in favor of those who survive the period of distribution, and of those only." Jarman on Wills, 7th Ed., p. 2065;...
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