Van Veen v. Van Veen

• Decision Date: 10 April 1931
• Docket Number: 40719
• Citation: 238 N.W. 718,213 Iowa 323
• Parties: DORIS L. VAN VEEN, Appellee, v. EDITH VAN VEEN et al., Appellants
• Court: Iowa Supreme Court

238 N.W. 718

213 Iowa 323

DORIS L. VAN VEEN, Appellee, v. EDITH VAN VEEN et al., Appellants

No. 40719

Supreme Court of Iowa, Des Moines

April 10, 1931

REHEARING DENIED OCTOBER 31, 1931.

Appeal from Mahaska District Court.--D. W. HAMILTON, Judge.

An action in partition. From a decree of the district court ordering the same, appeal was taken. A cross-appeal was also taken by certain of the parties with reference to certain matters of procedure.--Modified in part; affirmed in part.

Modified in part; affirmed in part.

B. W Preston, for appellee.

W. H Keating and McCoy & McCoy, for appellants.

OPINION

ALBERT, J.

On the 11th day of April, 1926, Nick Van Veen died seized in fee of a tract of land in Mahaska county containing approximately 93 acres. At the time of his death, there was an outstanding mortgage on said land in favor of J. H. Schultz, with a balance due thereon of $ 4,300.00 and some interest. He left surviving him the defendant herein, Edith Van Veen, his widow, and his children, Doris L. Van Veen, the plaintiff herein, Floyd and Ruth Van Veen. By due proceedings, Hein Van Veen was appointed administrator and qualified on April 15, 1926.

On the 16th day of September, 1929, the plaintiff and appellee herein, filed a petition in the district court of Mahaska county, Iowa, seeking a partition of this land, claiming that the widow, Edith, was entitled to an undivided one-third thereof and the plaintiff and the defendants, Floyd and Ruth, were each entitled to an undivided two-ninths. Plaintiff, by way of amendment to her petition, asked that Edith be required to account for rent on said property from the year 1926 to 1929 inclusive.

The widow, Edith Van Veen, claims first, that she received $ 1,700.00 from the estate of her parents which she invested in improvements on the land in controversy by way of tiling, buildings and repairs, etc. She claims further that she is entitled to the value of one-third of said real estate to be set off in kind to her so as to include the buildings thereon, and is entitled to do this as between her and the children, free from the mortgage indebtedness.

The court allowed the widow nothing on her claim of $ 1,700.00, holding that on account of the peculiar conditions existing in the case, the share of the widow could not be set off in kind so as to include the buildings, and ordered all of the land sold by the referee. He charged the widow rent for the shares of the children, deducting certain taxes and other expenditures, making a net charge against her therefor of $ 1,392.36, and ordered that after the payment of costs and expenses of the litigation, the referee, from the proceeds derived from such sale, should pay to the widow one-third thereof, less $ 1,392.36, the balance to be divided among the children, but the mortgage indebtedness was to be paid from the children's share.

All defendants joined in the appeal.

To a fair understanding of the case, a few of the salient facts are necessary: Nick Van Veen owned and he and his family were living upon this farm as their homestead at the time of his death. All indebtedness of the estate, except the mortgage, has been taken care of. After his death, his widow and children continued to occupy and use said farm up until the time of this litigation. By arrangement between the widow and Hein Van Veen, her brother-in-law, he was employed by her to look after this farm. The evidence shows that during all of these years, the farm was conducted under Hein's supervision, crops were raised and sold, stock was bought and sold, and the family lived and the children were clothed and educated from the proceeds of said farm.

II. The first question urged on behalf of the widow is that she should not be charged with rent for the shares of the children during the time in controversy.

We are cited to numerous cases in this jurisdiction and others holding that as between tenants in common, in the absence of an agreement, when one tenant in common occupies the premises not as a disseisor, he is not required to respond by way of rent to his cotenants. But at this point we are confronted with the question of whether the mother and children were tenants in common.

In Burke v. Barron, 8 Iowa 132, the widow brought action to admeasure dower. The husband died January 16, 1853. The legislature, on January 24th, repealed the law theretofore existing giving to the surviving widow in fee simple one-third in value of the real estate. The defense was there being no reservation in the repealing statute and her dower being not assigned, there was no vested estate in her. The court said:

"We are clearly of opinion, that under the law as enacted by the Code (Section 1394), the plaintiff's in the real estate in question, at the death of her husband, had all the attributes of a vested right. It was a right to one-third of the land in fee simple," and it was held this right could not be taken away from her by the repealing statute.

In Potter v. Worley, 57 Iowa 66, 7 N.W. 685, the action was in partition. John Worley died December 14, 1864, leaving a will giving all property to his wife during her natural life and on her death it was to be divided between his brothers and sisters. The surviving wife took possession of all of the property, both real and personal, and used and controlled the same as her own until her death in 1877. Plaintiffs, being the heirs of the wife, claim that on the death of the husband she became the owner of a one-third of the real estate in fee simple. Mrs. Worley did not object to the will or relinquish her rights thereunder, and did not have a one-third interest set apart during her lifetime. It was held there was no inconsistency between taking dower and taking under the will. On a rehearing in the case we said:

"As the dower in the case at bar was one-third in fee simple, it vested in the widow immediately upon the death of her husband without action on her part."

In Blair v. Wilson, 57 Iowa 177, 10 N.W. 327, the question was whether the conduct of the wife, after the death of the husband, amounted to an election to take the homestead. No dower had been admeasured at the time of the death of the wife. She had remarried and her last husband, who survived her, claimed a dower in her dower interest in the lands of her former husband. The former husband deeded her a life estate in 80 acres of land, including the homestead. We there said:

"As the life estate in the eighty acres was not inconsistent with the right of dower, such right accrued at once upon the death of the husband. The legal title to one-third of the real estate vested immediately in the widow, and descended to her heirs, unless she was in some manner divested of it during her lifetime."

In Herr v. Herr, 90 Iowa 538, 58 N.W. 897, the action was in partition and to cancel the mortgage given by the surviving spouse after the death of her husband. We said:

"It is true that a widow has no right to select her dower herself. But she is entitled to an undivided one third in fee, and she could make a valid disposition of her undivided interest without having it assigned, admeasured, or set off. See Larkin v. McManus, 81 Iowa 723, 45 N.W. 1061. * * * There can be no doubt that in equity a widow may sell and convey her dower interest before assignment, and the grantee may maintain an action for its assignment. Huston v. Seeley, 27 Iowa 183. We think that, if Margaret Herr could have made a valid conveyance of her dower right in the land, she could incumber it by mortgage, and, if she could incumber the whole tract, the mortgage upon an undivided one third of any part of the real estate is valid."

In In re Estate of Proctor, 103 Iowa 232, 72 N.W. 516, the action was to admeasure dower. There was a will giving to the wife (after the payment of debts and funeral expenses) all the rest, residue and remainder of the estate to have and to hold during her life, with full power to sell, transfer as much as might be needed for her support, and cancellation of indebtedness now or thereafter existing, with a remainder over to his son. The will did not provide that the gift to the wife was in lieu of dower. It was held there was no inconsistency between the wife's taking her dower and the rights under the provisions of the will. We said:

"The distributive share of the widow vested in her immediately upon the death of her husband, qualified by her right of election to take under the will, and to the rights of creditors * * * there (was) * * * no election by the widow to divest her in whole or in part of the distributive share that vested in her immediately upon the death of her husband. Being seized of the right to her distributive share in her husband's estate at her death, that right passed to her heirs immediately upon her decease."

In Sawyer v. Biggart, 114 Iowa 489, 87 N.W. 426, suit was for the assignment of dower. We there said:

"The plaintiff's dower interest vested in her on the death of her husband, and she then became owner eo instante of an undivided one-third of all his real estate in fee simple," citing cases.

Piekenbrock & Sons v. Knoer, 136 Iowa 534, 114 N.W. 200, was an action in the nature of a creditor's bill. Mary A. Knoer died intestate on October 9, 1900, leaving her husband, J. J., and six minor children as her heirs-at-law. She died possessed of 120 acres of land. Her surviving husband continued to live upon the land and made no election between a distributive share and a homestead. After the commencement of this action, he elected to take the homestead right. The claim was that this election was fraudulent as against the creditors, and they asked that the distributive share be set aside as subject to the payment of plaintiff's judgment. ...