Smith v. Runnels

• Decision Date: 28 January 1896
• Citation: 65 N.W. 1002,97 Iowa 55
• Parties: LEAR SMITH OR LEAR SHEDINE, Appellant, v. MARTHA RUNNELS, et al
• Court: Iowa Supreme Court

65 N.W. 1002

97 Iowa 55

LEAR SMITH OR LEAR SHEDINE, Appellant, v. MARTHA RUNNELS, et al

Supreme Court of Iowa, Des Moines

January 28, 1896

Appeal from Harrison District Court.--HON. FRANK R. GAYNOR, Judge.

SUIT in equity to partition or sell certain real estate, in which plaintiff claims to have a life estate in virtue of the terms of a certain will executed by one Sarah Smith during her lifetime. The defendants demurred to the petition. The demurrer was sustained, and plaintiff appeals.

Affirmed.

L. R Bolter & Sons for appellant.

S. I King for appellees.

OPINION

DEEMER, J.

The petition alleges, in substance, that the plaintiff is the owner of a life estate in certain real property therein described; that she acquired her interest therein under and by virtue of a will made and executed by one Sarah Smith who, in her lifetime, was the owner of the land; that the defendants, some thirty-two in number, are the collateral heirs of Sarah Smith, and that they are entitled to what remains of the said real estate, or its proceeds, after a sufficient amount thereof has been taken for the support and maintenance of plaintiff during her natural life; that the land is brush or timber land, and is unproductive, and that the rents or profits of the same will not pay the taxes; that the land has been sold for taxes, and, unless some relief be granted, both plaintiff and defendants will lose all their interest in it. And she asks a decree confirming the interest of all the parties in and to the real estate; that the premises be sold, and the money received, or so much thereof as may be necessary, be used for the support and maintenance of plaintiff during her natural life--the balance to be paid to defendants according to their respective shares. The clauses of the will necessary to be considered, to arrive at an understanding of the question presented, are as follows: "Second. I give to my sister, Lear Smith, should she survive me, all the estate of which I may die possessed, for her sole use and benefit during her natural life. And, after her death, I direct division as set out in clause 3. Third. Should my sister, Lear Smith, not survive me, I direct that my estate be divided among my natural heirs; my sister now being called Lear Shedine." It is contended in argument on behalf of appellant that this will devises to plaintiff a fee-simple estate. We do not think this is true. But, if it be the correct construction, it will not aid her in this suit, for two reasons: First, because she makes no such claim in her petition; second, because if she is the owner of the land in fee simple, she needs no aid from a court of equity in order to dispose of the land. If she is the fee owner, partition...