Thiele v. Whittenbaugh, 63712
| Decision Date | 23 April 1980 |
| Docket Number | No. 63712,63712 |
| Citation | 291 N.W.2d 324 |
| Parties | Vera LaVerle THIELE, Milo George Whittenbaugh, Martin Gaylen Whittenbaugh, Edith LaZaida Moran, Penny A. McComb, Arthur V. James, William T. Charpier, Jr., Donna Jean Charpier, William Francis Whittenbaugh, Walter Faye Whittenbaugh, Marjorie Evelyn Knox, Rex Krivanek, and Nellie Ruth Clemens Yurkovich, Appellants, v. Maude E. WHITTENBAUGH, Robert L. Anthony, Executor of the Estate of WilliamWhittenbaugh, Deceased, and Russell Jennings, Appellees. |
| Court | Iowa Supreme Court |
R. L. Donohue and James S. Updegraff, West Union, for appellants.
R. L. Van Veldhuizen and M. S. O'Brien of O'Brien Law Firm, Oelwein, for appellees.
Considered by HARRIS, P. J., and McCORMICK, ALLBEE, McGIVERIN, and LARSON, JJ.
This appeal involves questions that arose in an action to partition land between a life tenant, the second wife of a testator, and remaindermen under the testator's will. The trial court ordered the sale of the land and ruled that the partition sale proceeds were to be invested by a court-appointed trustee, with the income to be paid to the life tenant; and if the income was insufficient, the corpus of the trust could be invaded to pay the "expense of sickness" of the life tenant. In addition, the court ruled that the life tenant's medically prescribed nursing home care constituted an "expense of sickness" in light of the testator's will and prior probate orders interpreting the will. We affirm.
Plaintiffs, remaindermen, appeal raising the following issues for our review:
1. Whether the court had jurisdiction to consider certain estate matters in this partition action;
2. Whether the prior probate case rulings interpreting the testator's will, with regard to whether the phrase "any expense of sickness" included nursing home costs, rendered the issue of whether corpus may be invaded for "medically-prescribed nursing home care" res judicata;
3. Whether the will provisions establishing the scope of the life tenant's interest authorized the life tenant to invade corpus of the partition sale proceeds; and
4. Whether the court erred in its disposition of the sale proceeds.
William Whittenbaugh died testate in 1949. His principal asset was a Fayette County farm. In his will he made the following devise:
Item 2. I will, devise and bequeath the use and control of all of my estate, real, personal and mixed, of which I may die seized or to which I may be entitled, to by beloved wife, Maude Eleanor Whittenbaugh, for and during the period of her natural life as long as she remains unmarried and my widow, with the further provision that said life estate is to cover any expense of sickness and funeral expense for my said wife, Maude Eleanor Whittenbaugh, if she remains unmarried and my widow.
The will further provided in Items 3 and 4 that upon Maude's death or remarriage the remainder of William's estate was to be sold by the estate executor and, subject to payment of her funeral expense, distributed to the remaindermen, plaintiffs herein.
Maude E. Whittenbaugh is the main defendant and appellee in this appeal. Robert L. Anthony is the executor of William's estate, the court-appointed trustee in the partition action, and a nominal defendant herein. Defendant Russell Jennings was a tenant on the farm when the partition action was commenced, but is not active in this appeal.
After William's death, Maude took possession of the farm devised pursuant to "Item 2" of William's will and received the income from it as life tenant. She has not remarried and was age 86 at time of trial in 1979. In recent years Maude's health has failed and the necessity and expense of care for her by others has increased.
On February 2, 1977, in William's estate file, the court construed the above will provisions to allow the invasion of the principal or corpus of the estate for the payment of Maude's "medical expenses." An appeal by the remaindermen from that ruling was dismissed as untimely. Thiele v. Whittenbaugh, 267 N.W.2d 412 (Iowa 1978) ().
On August 24, 1978, again in the probate file, on application of the remainderman, the court, without presentation of evidence, interpreted "medical expenses" in its February 2, 1977, order to mean No appeal was taken from that ruling.
Meanwhile, in 1977 the plaintiff remaindermen filed a petition in equity for partition, sale of the farm and division of the proceeds according to their respective shares. Attached to the petition was a copy of William's will. In her amended answer, Maude cross-petitioned also seeking partition of the real estate and that the proceeds be retained in trust for her use during her life. On September 20, 1978, the court entered a partial decree in which it granted partition, ordered sale, and approved the referee's sale of the farm for over $200,000. The court also found that Maude E. Whittenbaugh held a life estate with a power to invade the principal of the farm for medical expenses, but reserved jurisdiction to later provide for disposition of the sale proceeds.
All remaining matters in the partition case were heard at an evidentiary trial on May 8, 1979, by Judge Keefe, who was the same judge who had entered the probate orders of February 2, 1977, and August 24, 1978, construing the will. Remaining to be resolved in the partition case were disposition of the sale proceeds and allowance of attorney fees. Also before the court was a motion made by plaintiffs, with an attached copy of the probate order of August 24, 1978, which defined "expense of sickness" under the will. The motion urged that the August 24 order, because of its res judicata effect, precluded the claim by Maude that her "expense of sickness" could include her nursing home care. Maude filed a written resistance contending the issue of payment for the extraordinary care she requires had not previously been before the court, and that the sale proceeds should be kept intact and available to pay the expense of such care rather than divided between the parties as urged by plaintiffs.
At trial the deposition of Dr. John Ahrens, Maude's treating physician, was received in evidence. He testified that in his opinion her care at the Grandview Nursing Home in Oelwein was a medical necessity. She had acute and severe diabetes, a fractured left leg, continuing gangrenous ulcers on her right leg, and a fractured left arm following an episode of dizziness. In addition, she was confined in a wheel chair except for brief standing periods. She needed frequent nursing care for her leg ulcers and almost daily physiotherapy.
As we have said, our review in partition actions brought pursuant to the authority of section 557.9, The Code 1977, is de novo. Huse v. Noffke, 271 N.W.2d 682, 683 (Iowa 1978). We now discuss the issues presented in light of that standard.
I. The jurisdiction problem. Plaintiffs contend the partition court had no jurisdiction to consider issues concerning which medical expenses of the life tenant the estate must pay and whether the corpus of the estate can be invaded for those expenses. Plaintiffs also say the trial of those issues in the partition action without notice deprived them of due process.
We agree with Maude that the deprivation of due process argument was not urged in the trial court and cannot be considered here for the first time. State v. Jones, 289 N.W.2d 597 (Iowa 1980); State v. Holmes, 276 N.W.2d 823, 828 (Iowa 1979).
Neither plaintiffs nor defendants challenge the jurisdiction of the court under section 557.9, The Code 1977, 1 to authorize the sale of the real estate or the distribution of the sale proceeds. We note that section 557.9, on its face, allows for such action by the court on the life tenant's petition, with the consent of the holder of the reversion. Huse v. Noffke, 271 N.W.2d at 684. We find that the filing of Maude's cross-petition seeking partition, the absence of a reversionary interest, and the consent of all vested remaindermen to the partition of the land, 2 met the express conditions precedent of section 557.9, thereby enabling the court to proceed pursuant to the dictates of that statute.
We have held "that the proper institution of an action in partition confers upon the court full jurisdiction over the property and over the full interest and title of every party properly before it." Schaal v. Schaal, 203 Iowa 667, 671, 213 N.W. 207, 209 (1927); Albright v. Moeckly, 196 Iowa 366, 368, 193 N.W. 625, 626 (1923).
The Iowa Rules of Civil Procedure and statutes relating to partition clearly contemplate the adjudication of the title interests of the several claimants to the land sought to be partitioned. Iowa R.Civ.P. 275 provides in pertinent part:
Except as permitted by this rule there shall be no joinder of any other cause of action and no counterclaim. But any party may perfect or quiet title to the property, or have an adjudication of the rights of any or all parties as to any or all matters growing out of or connected with it, including liens between them.
Iowa R.Civ.P. 271 provides in relevant part: "The petition shall describe the property and plaintiff's interest therein." Section 651.2 also provides:
The answers of the defendants must state, among other things, the amount and nature of their respective interests. They may deny the interest of any of the plaintiffs, and by supplemental pleading, if necessary, may deny the interest of any of the other defendants.
"These statutes contemplate joining issues with respect to the interest in or title to any portion of the estate by the adverse claimants thereto . . . and the establishment of title to the several shares of the estate previous to the partition thereof." Granger v. Granger, 172 Iowa 159, 162, 152 N.W. 503, 503 (1915), aff'd on...
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...of its own decree by the trial court must be given great weight in determining the intent of the trial court." Thiele v. Whittenbaugh, 291 N.W.2d 324, 329 (Iowa 1980) (citations omitted). It is apparent in reading the two district court opinions that literal enforcement of the prejudgment i......
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