Opinion
No. 3-379 / 02-0927
Filed August 13, 2003
Appeal from the Iowa District Court forKossuth County, Frank B. Nelson, Judge.
Thomas Henry appeals a district court decision that John Henry was entitled to an equal share of certain property which was the subject of this partition action. AFFIRMED.
David C. Skilling of Skilling Law Office, Algona, for defendant-appellant.
Eldon J. Winkel of Winkel Straub, Algona, for plaintiff-appellee.
Robert H. Christian of Cassel, McMahon, Stowater Christian, Algona, for defendant Farmers State Bank.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Thomas Henry appeals a district court decision that John Henry was entitled to an equal share of certain property which was the subject of this partition action. He claims John received an advancement of his share of the estate and is not entitled to any additional property. We affirm.
I. Background Facts Proceedings
Simon and Matilda Henry had four children: Simon Eugene Henry (Eugene), Ardith Knecht, John Henry, and Thomas Henry. Simon had an undivided one-half interest in 160 acres of farmland. Matilda owned an eighty-acre farm.
Simon died, and under his will Matilda had a life-estate in the 160-acre farm. After her death the property was to be divided equally among his four children. Matilda died in 1998. Her will provided that her children would share equally in her property. Eugene was the executor of both estates.
On July 5, 2001, John filed an action seeking a partition of the properties. Eugene, Ardith, and Thomas resisted the petition, claiming John had received certain advancements and was not entitled to anything more from the estates. In 1982 Matilda signed a promissory note for $120,000 and gave a mortgage to Farmers State Bank on her property. John received the proceeds from the note. Matilda had also given John forty acres of land. At the time of the partition action, the Bank was still owed $67,000 in principal and $19,710.38 in interest.
At the hearing Eugene, Ardith, and Thomas presented two handwritten documents which they claimed were wills or codicils prepared at Matilda's request by Tina Henry Thill, Thomas's daughter and Matilda's granddaughter, and allegedly signed by Matilda. The documents stated that John should not receive a share of Matilda's estate because he had already received more than his share.
The district court concluded there was "no credible evidence which would support a finding that Matilda Henry intended or attempted to have the loan or real estate transfer treated as an advancement or to believe that John Henry should receive nothing from her estate." The court noted that the purported codicils had not been introduced into Matilda's probate proceedings. Also, Eugene, as executor of the estate, had not made a claim against John for the loan. Furthermore, Tina, who allegedly prepared and witnessed the documents, was not called to testify in this case. The court concluded Matilda's will controlled and Matilda's four children should share equally in the partition proceeding. Thomas has appealed the court's ruling. II. Standard of Review
The order appealed from was a partial decree, which left for further proceedings the question of whether the partition would be in kind. We consider Thomas's notice of appeal as an application for interlocutory appeal under Iowa Rule of Appellate Procedure 6.1(4). See Hamilton v. Mercantile Bank, 621 N.W.2d 401, 409 (Iowa 2002). We determine the application for interlocutory appeal should be granted because the district court's decision involves substantial rights and will materially affect the final decision in this case. See Iowa R.App.P. 6.2(1).
A partition action is an equitable proceeding. Iowa R.Civ.P. 1.1201(1). Our review is de novo. See In re Estate of Gauch, 308 N.W.2d 88, 92 (Iowa 1981). We give weight to the trial court's findings, especially as they relate to the credibility of witnesses. Watts v. Archer, 252 Iowa 592, 596, 107 N.W.2d 549, 551 (1961).
III. Merits
Thomas claims Matilda's gifts to John were an advancement of the amount he would have received under the will. Thomas asserts that because John already received more than his fair share, he should not be entitled to receive anything by this partition action.
The doctrine of advancements applies only in cases where the decedent died intestate. Harper v. Coad, 191 N.W.2d 682, 687 (Iowa 1971). If a decedent is testate, whether an advancement will be charged against a share depends upon the language of the will. In re Estate of Morgan, 225 Iowa 746, 747, 281 N.W. 346, 347 (1938); see also In re Estate of Palmer, 194 Iowa 611, 614, 190 N.W. 30, 32 (1922) ("It rests wholly with the testator, in the making of his will to say whether or not, and to what extent, advancements shall be charged.").
We first note that Simon's will does not provide that advancements should be charged against a beneficiary's share, and there is no claim his will was ever changed. Therefore, the doctrine of advancements does not apply to the 160-acre farm.
We next note that Matilda's original will, signed in 1967, makes no provision for advancements to be charged against a share. Furthermore, we agree with the district court's finding that there is no credible evidence to show Matilda changed her will. The purported codicils were not presented in the probate proceedings regarding Matilda's estate and the estate made no claim against John for the alleged "advancement" of $120,000. We conclude the terms of the will should control and the doctrine of advancements does not apply in regard to the eighty-acre parcel of land.
We affirm the decision of the district court.