Van Vleck v. Anderson

• Decision Date: 19 November 1907
• Citation: 136 Iowa 366,113 N.W. 853
• Parties: VAN VLECK v. ANDERSON ET AL.
• Court: Iowa Supreme Court

136 Iowa 366

113 N.W. 853

VAN VLECK

v.ANDERSON ET AL.

Supreme Court of Iowa.

Nov. 19, 1907.

Appeal from District Court, Plymouth County; John F. Oliver, Judge.

Action in equity to construe a will. The defendants pleaded in abatement another action pending. On trial the plea was sustained, and from a judgment dismissing his petition, and for costs, plaintiff appeals. Affirmed.Struble & Struble, for appellant.

McDuffie & Keenan, for appellees.

BISHOP, J.

This action was commenced on December 16, 1905. The plaintiff and the defendant Charlena Anderson are brother and sister, children of Louisa Van Vleck. The other defendants are the two sons of Charlena, both of whom have attained to the age of majority. The petition alleges the death of Louisa Van Vleck in the year 1897, and that she died testate and seised of certain real estate described and some personal property. The instrument of will is set forth, and the probate thereof in the district court of Plymouth county alleged. The will bears date January, 1878, and according thereto one-half of the estate, both real and personal, is bequeathed to plaintiff, Balfour Van Vleck. Following a minor bequest to Charlena, there is, then, this provision: “(4) I devise and bequeath to my executors (Balfour Van Vleck and B. M. Gurnee) all the rest, residue and remainder of my property, to be held in trust and used for the purpose as follows, to wit: The same to be productively invested in good real estate security, and interest to be paid annually to my said daughter Charlena during her lifetime, and in case it shall appear to the satisfaction of my said executors and trustees that a portion or all of the principal shall be needed for the support of my said daughter, or for the support and education of her children, then in that case they are hereby authorized to use the part of all the principal for the purpose aforesaid. At the death of my said daughter, then the said bequest to go to her children; but if my said daughter shall die without leaving issue, then in that case the said remaining property to go to my son Balfour H. Van Vleck.” It is then alleged that the real estate of which said Louisa died seised still remains undisposed of, and that defendants have commenced an action in said court praying an accounting as to personal property and for a decree giving them title as of absolute ownership to an undivided one-half of all said real estate, regardless of the terms of said will. This allegation then follows: “That defendants are now asserting and claiming that the true construction of the fourth paragraph of said will is to the effect that it was the intention of the testator that the real estate that might be owned by her at the time of her decease would remain in that form of investment and not be converted into money and the same invested in real estate securities as provided by the fourth paragraph of said will, and are further claiming that said defendants are entitled to an absolute ownership of the undivided one-half of said real estate, and to have the management and control thereof.” Continuing, it is said that, in view of such claims, construction of the fourth paragraph of the will should be had. Plaintiff describes himself as a remainderman under the provisions of the will, and construction of said paragraph is prayed. The defendants appeared, and on May 23, 1906, answered, setting up among other things and by way of plea in abatement that before the commencement of this action an action had been begun and was pending and undetermined in said court in which the parties were the same, and involving the same issues as in this action.

Trial of the present action was had on May 26, 1906, and the evidence offered and introduced consisted solely of the pleadings in the alleged former action. The petition in that action was filed November 14, 1905, and shows the parties to be Charlena Anderson and her two sons, plaintiffs, and Balfour Van Vleck and B. M. Gurnee, defendants. The death of Louisa Van Vleck testate is alleged, and that she died seised of real estate (being that described in the petition in the present action) and of considerable personal property. The will is set forth at length, and the probate thereof alleged. It is then alleged that at the date of the execution of said will Louisa Van Vleck resided in Wisconsin, and that at the time all her property consisted of moneys and credits; that in the year 1894 she (Louisa) came to Iowa and made purchase of the real estate in question, and that thereafter she continued to operate the same as a farm down to the time of her death; and it is said that the investment in said lands was made in the belief entertained by decedent that greater returns and profits could be derived therefrom than from moneys loaned, and was intended to be permanent, and that such intention was well known to defendants. The allegation follows that it was the duty of defendants to take possession of said real estate under the fourth paragraph of the will, and to lease or manage the same,...