Whitehill v. Whitehill

• Decision Date: 09 December 1930
• Docket Number: 39761
• Citation: 233 N.W. 748,211 Iowa 475
• Parties: T. J. WHITEHILL, Administrator, Appellant, v. JOHN K. WHITEHILL, Appellee
• Court: Iowa Supreme Court

233 N.W. 748

211 Iowa 475

T. J. WHITEHILL, Administrator, Appellant, v. JOHN K. WHITEHILL, Appellee

No. 39761

Supreme Court of Iowa, Des Moines

December 9, 1930

Appeal from Page District Court.--J. S. DEWELL, Judge.

Action in equity by the administrator of the estate of Sarah Whitehill for an accounting. The facts are fully stated in the opinion. A motion to strike parts of the petition and to dismiss the action was sustained, and plaintiff elected to stand upon his petition. Judgment was accordingly entered against him. The plaintiff appeals.

Reversed.

Stephens & Thornell, for appellant.

William A. Turner, for appellee.

STEVENS J. MORLING, C. J., and DE GRAFF, ALBERT, and WAGNER, JJ concur.

OPINION

STEVENS, J.

Sarah Whitehill, surviving spouse of Thomas R. Whitehill, died in November, 1927. By the will of her husband, which was duly admitted to probate, she was given "all the real estate and personal property that I may own at the time of my death wherever the same may be situated, she to have the use, benefits and rents from the same during her lifetime, it being my intention to give her a life estate in all of my property only." The remainder, the will devised to John K. Whitehill, appellee herein. Sarah K. Whitehill elected to take under the will.

Thomas R. Whitehill died testate, as stated, December 5, 1921. During the period intervening between the death of the husband and wife, the wife resided upon the 80-acre tract which constituted the bulk of the husband's estate. The petition alleges that, during all of said time, appellee was in the possession of the said premises, renting and farming the same, and collecting the rents, income, and profits therefrom. It is also charged in the petition that Sarah Whitehill was possessed of $ 500, which was invested, of which investment appellee has knowledge. The petition further alleges that appellee declines and refuses to account for the income and profits from the estate during the existence of the life estate and to give information concerning the $ 500 item. The prayer of the petition is for an accounting.

As stated, appellee appeared, and filed a motion to strike parts of the petition, and to dismiss the action upon the ground that it appeared upon the face of the pleading that it did not state a cause of action. Both motions were sustained, as we understand the finding and judgment of the court, upon the theory that all of the property, including the income and profits of the life estate, passed, under the residuary clause of the will, to appellee. There can be no doubt that, ordinarily, where a life estate only is devised, the life tenant is entitled to receive and retain the income therefrom, and that, in the absence of the expression of a contrary intent by the testator, such income and profits will belong to the estate of the life tenant. Koep v. Koep, 146 Iowa 179, 123 N.W. 174; Milner v. Brokhausen, 153 Iowa 560, 133 N.W. 1068. See, also, annotation appended to First Nat. Bank v. Mulholland, 13 A. L. R. 1004. None of the cases cited by appellee are in conflict with this rule. For cases from other jurisdictions, see Vawter v. Frame, 48 Ind.App. 481 (96 N.E. 35); Letterle's Estate, 248 Pa. 95 (93 A. 935); Ellis v. Flannigan, 279 Ill. 93 (116 N.E. 618).

We find nothing in the will of Thomas R. Whitehill, indicating an intention on his part to dispose of the rents, income, and profits of the life estate to the residuary...