Turner's Estate, In re

• Decision Date: 05 May 1959
• Docket Number: No. 49709,49709
• Citation: 96 N.W.2d 481,250 Iowa 795
• Parties: In re ESTATE of Mary A. TURNER, Deceased. VALLEY BANK & TRUST COMPANY, Trustee, et al., Plaintiff-Appellee, v. BANKERS BUILDING CORPORATION, Defendant-Appellant, Home for the Aged, and William E. Tookey, Guardian of Susie P. Turner, an Incompetent Person, Intervenors-Appellees, Des Moines Children's Home, American Board of Commissioners for Foreign Missions, Plymouth Congregational Church, Women's Fellowship of Plymouth Congregational Church, and Leo J. Lucier, Trustee for Susie P. Turner, an Incompetent Person, Defendants-Appellees.
• Court: Iowa Supreme Court

Page 481

96 N.W.2d 481

250 Iowa 795

In re ESTATE of Mary A. TURNER, Deceased.

VALLEY BANK & TRUST COMPANY, Trustee, et al., Plaintiff-Appellee, v. BANKERS BUILDING CORPORATION, Defendant-Appellant, Home for the Aged, and William E. Tookey, Guardian of Susie P. Turner, an Incompetent Person, Intervenors-Appellees, Des Moines Children's Home, American Board of Commissioners for Foreign Missions, Plymouth Congregational Church, Women's Fellowship of Plymouth Congregational Church, and Leo J. Lucier, Trustee for Susie P. Turner, an Incompetent Person, Defendants-Appellees.

No. 49709.

Supreme Court of Iowa.

May 5, 1959.

Gamble, Read, Howland, Gamble & Riepe, Des Moines, for defendant-appellant Bankers Building Corp.

Brody, Parker, Miller, Roberts & Thoma, Des Moines, for plaintiff-appellee Valley Bank & Trust Co., Trustee. Lehmann, Hurlburt, Blanchard & Cless, Des Moines, for defendant-appellee Des Moines Children's Home.

Hiram S. Hunn, Des Moines, for defendant-appellee American Board of Com'rs for Foreign Missions.

Mitchell & Beving, Des Moines, for defendants-appellees Plymouth Congregational Church and Women's Fellowship of Plymouth Congregational Church.

Leo J. Lucier, Des Moines, for himself as defendant-appellee Trustee for Susie P. Turner, An Incompetent Person.

Herrick & Langdon, Des Moines, for intervenor-appellee Home for the Aged.

William A. Tookey, Pasadena, Cal., for himself as intervenor-appellee Guardian of Susie P. Turner, An Incompetent Person.

THORNTON, Justice.

The question presented by this appeal is whether Division XI of defendant's answer states a case for declaratory relief. The question arises on the court's refusal to rule on two law points under rule 105, Rules of Civil Procedure, 58 I.C.A., and the court's withdrawing the issues raised in Division XI of defendant's answer from the case.

The case comes here on defendant's appeal, granted by us, under rule 332, Rules of Civil Procedure. Plaintiff is a successor trustee without discretion, subject to the control of the Polk District Court, under the will of Mary A. Turner, deceased. Defendant is a lessee by assignment of a lease to a quarter of a block of downtown real estate in Des Moines. The lease was entered into in 1918 between plaintiff's predecessor as trustee, defendant's assignor, and all of the beneficiaries, both of the present interest and the remaindermen, all of whom signed and acknowledged the instrument. The District Court approved the lease and directed the trustee to execute it. All parties in interest are before the court.

In March of 1958 defendant served notice of its intention to demolish the buildings on the premises and erect thereon a combination drive-in banking facility and self-service parking ramp. As provided in paragraph six of the lease, defendant attached to the notice plans and specifications, a cost estimate, and surety bond supported by a pledge of collateral. The plaintiff filed its application for instructions in probate, the court ordered the matter transferred to equity, and the plaintiff to recast its pleadings so the parties could plead to it either as plaintiffs or defendants and the defendant be brought in as a defendant. This was done. The pleadings filed by plaintiff and the beneficiaries raised issues that the proposed structure did not conform to the terms of the lease, the validity of a reduction in rent, that the lessee was in default and committing waste, the validity of the entire lease and the validity of the assignment to defendant. Defendant joined issue on these and in Division XI of its amendment to answer alleged it had the right under the lease to demolish the present buildings without rebuilding and could use the land solely as a parking lot, that the lease only required it to construct buildings or improvements of equal or greater value if it elects to erect buildings on the premises and that it may desire to erect a small structure and use the rest of the premises as a commercial parking lot, that the present improvements have an assessed 100% value of $43,000 and are of extremely doubtful actual value, and defendant in such division prayed for declaratory relief that it may use the premises for a parking lot and for that purpose demolish the present buildings and erect no building thereon, that such parking lot is a lawful use under the lease, that defendant may use the premises as a combination of drive-in banking facility and parking lot without erecting any structure covering a substantial portion of the premises, that a building which cost $45,000 will satisfy all obligations under the lease, and that a drive-in banking facility at such cost and the use of the rest of the premises as a parking lot will comply with the lease.

Plaintiff and the beneficiaries joined issue on Division XI by denial and questioning the right to declaratory relief under the facts alleged therein. The beneficiaries filed an application for separate adjudication of law points under rule 105, Rules of Civil Procedure. The court declined to rule on law points numbers two and five. A motion was made to require defendant to elect to proceed under the notice it had originally served on plaintiff or to proceed under its Division XI. The court overruled the motion and at the same time on its own motion withdrew from the case all issues raised by Division XI of defendant's answer. Defendant asked and was granted permission by this court to appeal under rule 332, Rules of Civil Procedure, the trial court's refusal to rule on the law points and its withdrawing the issues raised by defendant's Division XI.

I. The trial court ruled and plaintiff and other appellees argue here that the matters alleged in defendant's Division XI were not ripe for declaratory decision because no notice had been served as provided in paragraph six of the lease. We hold this to be error.

Our Rules of Civil Procedure provide in rule 261, '* * * declare rights, status, and other legal relations * * *.'; in rule 262, 'Any person interested in a contract * * * or whose rights, status or legal relations are affected by a * * * contract, * * * may have determined any question of the construction or validity thereof or arising thereunder, and obtain a declaration of rights, status or legal relations thereunder.'; and in rule 265, 'The court may refuse to render a declaratory judgment or decree where it would not, if rendered, terminate the uncertainty or controversy giving rise to the proceeding.'

The above rules are remedial and should be given a reasonably liberal construction. Wesselink v. State Department of Health, 248 Iowa 639, 80 N.W.2d 484; In re Estate of...