Windsor v. Barnett

• Decision Date: 16 February 1926
• Docket Number: 37244
• Citation: 207 N.W. 362,201 Iowa 1226
• Parties: LELAND WINDSOR et al., Appellants, v. MARGARET C. BARNETT et al., Appellees; MARY LOUISE LEGGETT, Intervener and Appellant
• Court: Iowa Supreme Court

207 N.W. 362

201 Iowa 1226

LELAND WINDSOR et al., Appellants, v. MARGARET C. BARNETT et al., Appellees;

MARY LOUISE LEGGETT, Intervener and Appellant

No. 37244

Supreme Court of Iowa, Des Moines

February 16, 1926

REHEARING DENIED MAY 14, 1926.

Appeal from Polk District Court.--JOSEPH E. MEYER, Judge.

SUIT to vacate order construing will and setting off dower, and to establish and enforce a trust. Motion to dismiss was sustained. The plaintiffs and intervener appeal.

Reversed.

W. C Strock, P. H. Cunningham, and W. B. Sloan, for appellants.

George Wambach and Ine D. Shuttleworth, for appellee Margaret C Barnett.

F. L. Groesbeck, for appellees Ella B. Morris and Ed. F. Barnett.

MORLING, J. DE GRAFF, C. J., and EVANS and ALBERT, JJ., concur.

OPINION

MORLING, J.

The controversy turns on the interpretation of the will of L. J. Barnett, deceased. Generally speaking, the questions argued are whether certain bequests are of present or future interests, whether vested or contingent, and whether the widow's election to take distributive share authorized the termination of the trust provided by the will and the acceleration of distribution.

The will, after directing the payment of debts, provides as follows:

"Item 2. I will and bequeath to my beloved wife, Margaret C. Barnett, a monthly allowance of two hundred fifty dollars to be paid her by my executrices and trustees hereinafter named and said monthly payments to continue until all the debts and the mortgage indebtedness resting against my real estate shall have been fully paid and extinguished and from and after the payment and satisfaction of all the mortgage indebtedness and debts aforesaid, there shall be paid to my beloved wife, Margaret C. Barnett, from my net income, interest and profits derived by my trustees from said estate, an amount equal to 40 per cent of said net income, interest and profits to be paid her during the term of her natural life, and to my sister, Ella B. Morris, of the city of Des Moines, Iowa, an amount equal to 20 per cent, but in case of her death her share shall go to the heirs of her body and to my brother Ed. F. Barnett, of the city of Des Moines, Iowa, an amount equal to 20 per cent, but in case of his death, his share shall go to the heirs of his body, which shall be paid them annually and at such times as my trustees shall deem best and from funds on hand available until the death of my beloved wife, Margaret C. Barnett, and upon her death the rest, residue and remainder of my said estate shall be divided as follows:

"One third shall go to the heirs of my said wife, Margaret C. Barnett, or to such persons as she may designate during her lifetime by will or otherwise.

"One third shall go to my sister, Ella B. Morris, and the heirs of her body, and,

"One third shall go to Ed. F. Barnett, and the heirs of his body."

Item 3 provides:

"I hereby appoint my wife, Margaret C. Barnett, and my sister, Ella B. Morris, to act as trustees of my estate and hereby empower them to take charge and control, the same until the death of my wife; to invest and reinvest all moneys that may not be needed for making improvements or paying the allowances, in good interest-bearing securities, but to use and appropriate the funds first in the payment and extinguishment of such mortgage indebtedness as can be paid off out of the funds available for that purpose; to make such improvements upon said real estate and to make sales of such part of my real estate as to them shall be deemed to the best interest of my estate and to lease some of the real estate on long terms when they deem advisable and on making such leases they are to join with the lessees in any mortgage that may be required in order to facilitate the improvements. * * * Such trustees shall act without compensation and shall not be required to give bonds * * * In case of death of any one of said trustees, the court shall appoint some suitable person but such trustee so appointed shall give bond * * * said trustees shall also have the power to do and perform all things necessary in keeping said estate together * * * to enter into such agreements and execute such deeds conveying any property that they may deem necessary to be sold; * * * to invest and reinvest the funds in interest-bearing securities, and in the performance of their duties the order of the court shall not be required."

The next and last item appoints the wife and the sister as executrices, without bond.

The widow renounced her right to take under the will, and elected to take distributive share. She made application for admeasurement, accompanied by an agreement made between her and the brother and sister. This agreement was made by the three only, and was to the effect that there be set off to the widow certain personal property and certain described real property, some of which was stated to be subject to a mortgage which the widow should pay. The agreement provided that all of the remainder of the real and personal property should go to Ella B. Morris and Ed. F. Barnett, as their absolute property, subject to such mortgages as were upon it, which should be assumed by them. It was also agreed that, by reason of the widow's election, the provisions of the will could not be carried out, and that the will should "be submitted to the court for construction, in order to determine the effect of such renunciation upon the vested remainder," and, if the court should find that "the vested remainder" in the brother and sister became thereby accelerated, an order should be made to vest the entire remainder of the real and personal property in them, subject to mortgages which they were to assume. Shortly after the date of this agreement, an order was made showing the appearance only of the three beneficiaries named, and that "Margaret C. Barnett and Ella B. Morris, the executrices and trustees, have all been notified of the pendency of this application * * * and waived time for hearing and consented that said application * * * be brought on for hearing on any day during the September term, 1924." The order in substance recited and gave effect to the proceedings and agreement which have been related, setting off in fee to the widow the property agreed upon, subject to the mortgage indebtedness which she assumed, and vested the balance of the estate in the brother and sister. The executrices were directed to make transfer accordingly.

Shortly afterward, this petition was filed by "Leland Windsor and E. H. Mullock, trustees of the estate of L. J. Barnett, deceased," against Margaret C. Barnett, Ella B. Morris, and Ed. F. Barnett. The petition alleges that plaintiffs are the duly and legally appointed and qualified trustees of the estate of L. J. Barnett, deceased. It sets up the will and the proceedings which have been related, and alleges that the will creates a trust estate; that Ella B. Morris and Ed. F. Barnett each have children, who, "together with other persons contingent upon their coming into being, have or may have a residuary interest as contingent remaindermen" in the estate. It alleges that neither said children nor grandchildren were served with notice, or appeared; that the division was in violation of the trust; that Margaret C. Barnett and Ella B. Morris were never appointed or acted as trustees; and "that no person or persons were ever appointed as trustees of the trust created under the will of L. J. Barnett, deceased." The prayer is to vacate the order, to decree the widow and brother and sister to be constructively trustees of all of the property of the estate, to interpret the will, and to require a surrender of the assets.

Mary Louise Leggett intervened, alleging that she is the daughter of Ella B. Morris, and as such, interested. She alleges that the order attacked was made in a perfunctory manner, without examination, and as matter of course; that it is void for lack of jurisdiction. She sets up the same claims as those in the petition, and joins in asking relief.

The defendants moved to dismiss the petition and the petition of intervener, upon grounds which will be considered, without particularly setting them out. This motion was sustained.

I. Did the widow's renunciation of the provisions of the will in her favor and her election to take her third have the same effect as would her death, to terminate the trust and accelerate the interests of the beneficiaries?

The trustees are empowered to take charge and control of the estate, invest and reinvest, pay mortgages, make improvements, make long-time leases and sales, and join with the longtime lessees in making mortgages to facilitate improvements. They are empowered to do all things necessary in keeping the estate together, and to convey any property that they may deem necessary to be sold. Income distribution is to be made, not only for the benefit of the wife, but when net income is realized, the sister and the brother or the heirs of their bodies are to participate, 20 per cent each to the brother and sister (or bodily heirs), and 20 per cent to...