Wilcke v. Wilcke

• Decision Date: 14 May 1897
• Parties: WILCKE v. WILCKE ET AL.
• Court: Iowa Supreme Court

102 Iowa 173

71 N.W. 201

WILCKE

v.WILCKE ET AL.

Supreme Court of Iowa.

May 14, 1897.

Appeal from district court, Clinton county; P. B. Wolfe, Judge.

Adam Wilcke died intestate in 1891 in Clinton county, Iowa, seised of 80 acres of land, which he acquired in 1877, while a nonresident alien. He became a citizen of the United States in 1882. He left surviving him, as his widow, the defendant Isabella Wilcke, but no issue. The parents of Adam Wilcke died in Germany prior to his death, and it seems to be conceded that they were incapacitated to inherit real estate by the law of this state. Adam Wilcke also left surviving him the plaintiff, Ludwig Wilcke, a brother of the full blood, Christian Wilcke, a brother of the half blood, and the heirs of certain other brothers of the half blood, whom it is unnecessary to name. The plaintiff and all the other survivors, except the widow, were at the death of Adam Wilcke aliens, and residents of Waldeck, Germany. Christian Wilcke and the heirs of the other brothers of the half blood are made parties defendant to this suit. The action is for the partition of the 80 acres of land left by Adam Wilcke. The plaintiff represents in his petition that the widow is entitled to an undivided one-half of the land; that he, as brother of the full blood, is entitled to an undivided five-sixteenths; that Christian Wilcke, a surviving brother of the half blood, is entitled to an undivided one-sixteenth, and the heirs of deceased brothers of the half blood to proportionate shares. By an amendment to the petition, the plaintiff pleaded a treaty between the United States and the king of Prussia, because of which it is claimed that the nonresident alienage of the parties does not defeat their right of inheritance. The petition asks a confirmation of the shares in accordance with the averments, and for partition accordingly. The widow alone answers. She pleads the facts as to the nonresident alienage and the decease of the parents of Adam Wilcke, and that the other defendants and the plaintiff “would become entitled to inherit, if at all, only by tracing their rights of inheritance through the said father and mother of said Adam Wilcke.” She further pleaded facts to show that the land in question was incumbered by mortgage at the death of Adam Wilcke, which, under the belief that she owned all of the land, she had paid off, and asked, if any part should be found to belong to the other claimants, that the amount she had so paid should be paid therefrom. In reply the plaintiff pleaded that, since the death of Adam Wilcke, the widow has occupied and received the rents of the premises entire, and asked that the value thereof be deducted from the amount due because of the discharge of the mortgage lien on the land. The district court found as facts that the plaintiff and the defendants, except Isabella Wilcke, were subjects of Prussia, and of the king of Prussia, at the time of the death of Adam Wilcke, and the plaintiff has, since the death of Adam Wilcke, removed to, and is now residing in, Iowa, and that partition of the land could not be equitably made. It confirmed the shares as alleged and asked by plaintiff; allowed the widow's claim for disbursements to discharge the mortgage lien from the land, after deducting the amount of the rents of the land therefrom; and ordered a sale of the land, and a distribution of the proceeds in accordance with the judgment as to shares. The defendant Isabella Wilcke appealed. Affirmed.Edred S. James, for appellant.

S. C. Scott, for appellee.

GRANGER, J.

1. As has been stated, plaintiff, in his reply, recited the facts as to the occupancy of the land by appellant, and asked that the rents received therefrom be deducted from the claim for disbursements on account of the mortgage lien discharged by her. Appellant moved the court to strike that part of the reply. The motion was denied, and complaint is made of the ruling. The claim is that it is an independent action in the nature of an accounting, or for money claimed. It is said, if it was to come into the action, it should have been pleaded in the petition. That could not have been done, because of Code, § 3277, which provides that there shall be no joinder or counterclaim of any other kind in an action for partition. Appellant concedes that she pleaded a counterclaim, in asking to recover from the disbursements to discharge the mortgage; and, but for that, we should hold that the claim for rent was improperly pleaded in a reply. It may be doubted if the counterclaim by appellant is within the exceptions of the chapter regulating the procedure for partition of real estate. But that we do not decide, for no such question is raised. It was, however, an independent right of recovery, but pleaded in this proceeding to secure a lien for its payment. It grew out of her occupancy and treatment of the land as her own. The claim for rent grew out of the same occupancy and treatment of the land by her, and the attempt seems to have been to adjust the debit and credit claims of the occupancy so as to leave the shares of the land, if partitioned, or the proceeds of it, if sold, freed from liens. Ordinarily, such a plea would not be one in avoidance of the counterclaim pleaded by appellant, but as her claim is sought to be made a lien on the subject-matter of the suit, and the plea in the reply is to avoid such a lien, in whole or in part, we think the court did not, in view of the situation, err in denying the motion.

2. Appellant states her second proposition for consideration as follows: “The appellees must trace their right of inheritance through the father and mother of the deceased, and, both having died aliens, the right of inheritance is cut off.” As we gather appellant's thought, it is that the inheritance of brother from brother is not immediate or direct, but mediate or indirect, as through another. Applied to this case, the thought is that plaintiff's right to inherit from his brother Adam depends on whether one or both of their parents could have so inherited at the time of death. If yes, that right is transmitted to the plaintiff. If no, it is lost. The conclusion must be reached in the light of the following provisions of the Code:

Sec. 2455. “If the intestate leave no issue, the one half of his estate shall go to his parents and the other half to his wife; if he leaves no wife, the portion which would have gone to her shall go to his parents.”

Sec. 2456. “If one of his parents be dead, the portion which would have gone to such deceased parent shall go to the surviving parent, including the portion which would have belonged to the intestate's wife, had she been living.”

Sec. 2457. “If both parents be dead, the portion which would have fallen to their share by the above rules, shall be disposed of in the same manner as if they had outlived the intestate and died in the possession and ownership of the portion thus falling to their share, and so on through ascending ancestors and their issue.”

It is not easy to deduce appellant's thought from the language of section 2457. The sections quoted plainly provide that, if the parents are alive, the property goes directly to them, because of their preference as heirs. If dead, it does not go to their estate for inheritance from them, but the heirs of the parents are made the heirs of the intestate, and the manner of disposition is made the same as if the parents had inherited, and the heirs had taken from them. The fact of the death of the parents being proved, the principal, if not the only, object of section 2457 is to identify the heirs of the intestate, and determine their proportions. In Lash v. Lash, 57 Iowa, 88, 10 N. W. 302, speaking to a state of facts to make the language entirely applicable to the question we are considering, this court, through Adams, C. J., said: “The estate in question never constituted any part of Christian Lash's estate, and was therefore never affected by Christian Lash's will. As the estate in question never constituted any part of Christian Lash's estate, no part thereof ever passed from Christian Lash to Anna Lash by inheritance, distribution, or...