Price v. Ewell

Evans, J. 1. Wills : construction:. ufe estate or fee? The defendant Storms is the grantee of his co-defendants and as such interposes the only defense made. The plaintiff Eosa Price is the wife of John Price and has no interest in the subject of the controversy except as such wife. Both parties to the controversy, viz.: plaintiff John Pnce and defendant C. W. Storms, rest their claim of title upon the will of Patrick Price, the former owner of - the property. Patrick Price died testate in September, 1888, seized of the property. He left surviving him his widow Gemima and four children. Two of his children, Eobert and John, were by a previous marriage. The other two children, Charles and Vallie, were children of the wife Gemima. After the death of Patrick, Eobert died intestate, leaving no widow or child surviving. The will of Patrick contained the following provision: “I do give and bequeath to my beloved wife, Gemima Price, my homestead, consisting of house and two and one-half lots on Fifth street, Fort Madison, Iowa, and the entire residue of my property, personal and real, after my funeral expenses shall have been defrayed and all my debts paid, to have and [208] to hold in her exclusive right so long as she shall remain unmarried, provided, only, that if either of my sons, Robert, Sandy, John or Charles Anderson, shall marry, and shall so desire, he shall have the privilege of building upon any vacant portion of the homestead, and shall have the privilege of occupying and using such building as a home, and provided that in case of her marriage, my estate, real and personal, shall be divided as follows: ■ “One-third to my wife, Gemima, and the .remainder divided equally among such of my children as shall have lived respectable lives; but if either of my sons above named shall have been convicted of a felony or if either of my daughters shall have been proven guilty of lewdness, such son or daughter shall thereby forfeit all right of inheritance under this will. “In case of the death of my wife Gemima Price, before there shall have been a division of my estate as above provided for, I give and bequeath said estate to my children to be equally divided among such of them as shall have maintained reputable lives as above defined.” It is the claim of the' plaintiff that by this will the widow Gemima took only a life estate in the property; whereas, the defendant Storms contends that the widow Gemima took a fee simple estate under such will, which she later devised by her own will to this defendant’s grantors; and this presents the only disputed proposition in the ease. The trial court held-that the widow Gemima took a fee simple estate under the will 'of Patrick. Such holding cannot be sustained. A devise of real estate to a widow to be held during her widowhood is a life estate subject to being terminated by the marriage of the widow. This was the' rule át' common' law and it has frequently been applied by this court. The recent cáse of Brunk v. Brunk, 157 Iowa 51, is decisive of the question involved. To the same effect is Convey v. Murphy, 154 Iowa 421; Archer v. Barnes, 149 Iowa 658. Appellee places special [209] reliance upon Busby v. Busby, 137 Iowa 57, and contends that it rules the case before us. By the will involved in the Busby ease one paragraph thereof purported to convey to the widow a fee simple estate. A subsequent paragraph purported to attach to the devise a condition subsequent whereby the devisee was required to remain the widow of the testator. Such condition was performed by the devisee. The will did not purport to devise any remainder over after the termination of the alleged life estate. Giving effect to the express terms of the will, it was held in that case that the provision as to widowhood was imposed as a condition upon the devise rather than as a limitation upon the duration of the estate. The will purported to devise all of the testator’s estate and this apparent purpose of testator to dispose of all of his estate would have been defeated by a contrary holding. In the case before us the will gave the property to the widow “to have and to hold in her exclusive right so long as she shall remain unmarriedThe remainder over after the termination of the life estate was fully disposed of to other parties. 2 partition-§eP«oVo.-taaeshares?^- oi mani II. It is averred in plaintiff’s petition that he is entitled to ten twenty-fourths of the property involved; that is to say that he took six twenty-fourths under his father’s will an<^ two-thirds of six twenty-fourths by inheritance from his deceased brother Robert, he being a brother of the full blood, whereas the other brother and sister were of the half blood only. These facts appear by stipulation and no issue has been made upon this basis of division except by a general denial and by the plea that the will of Patrick devised a fee simple estate to Gemima. It is suggested in appellee’s argument that in the event of a reversal the case should be remanded for a rehearing as to the respective shares of the parties. That question, however, is necessarily involved in the ease as made and is here for trial de novo. IJpon the submission of the case in the court below the plaintiff was entitled not only to the determination of the fact that he had an inter [210] est but also tbe extent of such, interest, and was entitled to a decree confirming shares accordingly. And this measures the relief to which he is entitled upon a trial de novo here. 3' fáfTsaíef reinumisement. III. In January, 1912, the plaintiff paid $62.41 in redemption of the property from tax sale. His right to a reimbursement therefor was recognized in the court below and should be recognized in the final distribution of funds. It is our conclusion that upon the reeor(j before us plaintiff is entitled to a decree confirming his share at ten twenty-fourths of the property involved. He is also entitled to a charge against the property as a whole for $62.41 with interest thereon from January 7, 1912. The decree below is accordingly — Reversed. Deemer, C. J., Weaver and Preston, JJ., concur.