Stolenburg v. Diercks

• Citation: 90 N.W. 525,117 Iowa 25
• Parties: STOLENBURG v. DIERCKS.
• Decision Date: 15 May 1902
• Court: Iowa Supreme Court

117 Iowa 25

90 N.W. 525

STOLENBURG

v.DIERCKS.

Supreme Court of Iowa.

May 15, 1902.

Appeal from district court, Cerro Gordo county; Clifford P. Smith, Judge.

Eggert F. Diercks died intestate July 25, 1899, leaving, him surviving, as his only heirs, his sons, Theodore and John Diercks, and a daughter, Antje Stolenburg, and two grandchildren, Oscar and Dora Diercks, children of a deceased son, Claus H. Diercks. The final report of the administrator, filed September 28, 1900, disclosed that the personal property of deceased had been reduced to money; that he held $5,582.90 for distribution; and averred that said grandchildren were not entitled to any of this amount, because of their father, Claus H. Diercks, having, in consideration of $1,000 paid by deceased, relinquished all claim to his estate, and also that Antje Stolenburg and her husband had executed in Germany, August 29, 1865, a paper, the agreed translation of which reads: “I, the undersigned, wife of Claus Heinrich Stolenburg, born Diercks, from Linden, Kirchspiels Hennstedt, in Northern Dithmarschen, hereby declare that I, expecting to emigrate to America on this day, have received from my father, Eggert Frederick Diercks, in Linden, in advance cash payment, the sum of 400 marks, for the reception of which I hereby release in the firmest manner, of the inheritance by my father, the head of the family, Eggert Frederick Diercks, in Linden, Kirchspiels Hennstedt, and by my mother, Antje Diercks, born Hansen, of the same place, perfectly and wholly to my entire satisfaction, am paid, so that I have no claim after the possible death of my named parents, in no way, whether from my father's or my mother's estate. This declaration I have fully considered, and without any reservation executed, and in consideration of any and all objections against it that could be thought of, escapes, and excuses, which might be properly named in any way. Also in consideration of the objection that a general release would be of no binding force in case not especially mentioned heretofore, or signed under my hand, or not attested by mine and my husband's signature. This is done in my presence in Rendsburg, the 29th day of August, 1865. [Signed] Antje Stolenburg, Born Diercks. Claus Heinrich Stolenburg, Husband.” The administrator asked that Theodore and John Diercks be declared entitled to the entire estate of deceased. September 26, 1900, Antje Stolenburg, in a petition duly filed, denied that her right to participate in the estate of her deceased father had been cut off by the above instrument, and alleged that in 1865, when about to emigrate with her husband to this country, the deceased gave her, at his home, before the beginning of their journey, the sum of 400 marks, with which to pay her passage to the United States; that on the day the instrument was executed he took herself and husband to the railway train, 16 miles distant, and, shortly before train time, to a lawyer's office, where said paper was prepared and signed; that she would not have signed it had she understood its import, and was induced to do so by the misstatements of deceased; that the contract was without consideration. She asked that she be allowed a distributive share in the estate, less the advancement of the sum paid her in Germany. On the trial this petition was treated as an objection to the final report, and, as a share in the estate was denied her, she appeals. Affirmed.Glass, McConlogue & Witmer, for appellant.

F. A. Kirschman, for appellee.

LADD, C. J.

In the paper executed in Germany in 1865 Antje Stolenburg stipulated that “I hereby release in the firmest manner the inheritance by my father, * * * and by my mother, Antje Diercks, * * * perfectly and wholly to my entire satisfaction, am paid, so that I have no claim after the possible death of my named parents, in no way, whether from my father's or my mother's estate.” The appellant insists that the word “inheritance,” as here used, should be accorded a purely technical meaning, and limited, in its application, to land only. While, in the strict legal signification of the term as formerly employed, and as may now appear when so intended, it refers to the devolution of realty, yet, as has been often held, in its popular acceptation personal property also is included, and in meaning it is as broad as the word “succession.” 24 Am. & Eng. Enc. Law, 345; Horner v. Webster, 33 N. J. Law, 387; Swanson v. Swanson, 2 Swan, 460;Adams v. Akerlund, 168 Ill. 632, 48 N. E. 455;Fort v. West (Wash.) 44 Pac. 104;In re Donahue's Estate, 36 Cal. 329. In Fort v. West, supra, the court said: “The old-time refined or sentimental reason for the distinction drawn from the descent of lands and the descent of personal property does not exist in this country. When the rule originated, real estate did not exchange hands as frequently as it does at the present day with us, but was usually kept in the same family, on the male side, from generation to generation. Here land is looked upon more as a commodity, and a common subject of bargain and sale. Titles pass frequently, and owners are continually changing. Also a more extended meaning has been given by courts to the word ‘inheritance,’ in some instances.” Referring to “heirs” and “inheritance,” the court, in Adams v. Akerlund, said: “These words, in their strict common-law signification, refer only to descent or devolution of real property; but in their broader signification they include both real and personal property.” The meaning to be given “inheritance” as used necessarily depends on the intention of the parties, as gathered from...