Bankers Trust Co. v. Allen

• Decision Date: 08 June 1965
• Docket Number: No. 51661,51661
• Parties: BANKERS TRUST COMPANY, Executor of the Estate of Alden B. Howland, Deceased, Appellee, v. Ward S. ALLEN, Jr. et al., Appellees and Cross-Appellants, Bertha Howland, Cross-Petitioner-Appellant.
• Court: Iowa Supreme Court

Page 607

135 N.W.2d 607

257 Iowa 938

BANKERS TRUST COMPANY, Executor of the Estate of Alden B. Howland, Deceased, Appellee, v. Ward S. ALLEN, Jr. et al., Appellees and Cross-Appellants Bertha Howland, Cross-Petitioner-Appellant.

No. 51661.

Supreme Court of Iowa.

June 8, 1965.

Herrick, Langdon, Sandblom & Belin, Des Moines, for Bertha Howland, cross-petitioner-appellant.

Gamble, Read, Riepe, Martin & Webster, Des Moines, for appellee Bankers Trust Co., ex'r.

Bannister, Carpenter, Ahlers & Cooney, Des Moines, for cross-petition-appellee and cross-appellant Ward S. Allen, Jr.

Davis, Huebner, Johnson & Burt, Des Moines, for cross-petition-appellees and cross-appellants Almy S. Howland and others.

Kent Emery, Des Moines, for cross-petition-appellees and cross-appellants, the known or unknown heirs of Alden B. Howland, and those persons known or unknown who may be entitled to take the intestate share of the estate of Alden B. Howland and who are otherwise unrepresented, and for all defendants who are in the military or naval service of the United States of America, and guardian ad litem for all defendants, known or unknown, who may be minors, who may be confined in a penitentiary or state hospital for insane or other institution, or judicially adjudged incompetent or under some other legal disability.

GARFIELD, Chief Justice.

Bankers Trust Co. of Des Moines, as executor of the estate of Alden B. Howland, deceased, brought this action for declaratory judgment construing his will and determining the rights of his widow, Bertha, and numerous heirs in the estate. Following trial to the court as in equity Bertha has appealed and the heirs have cross-appealed from the decree.

Decedent, a prominent Des Moines Lawyer, died July 24, 1962. His will, made October 3, 1961, was admitted to probate six weeks later. Item I of the will provides for payment of debts, taxes and expenses of last illness and burial. Items II, III, and IV follow:

'Item II. If she survives me, I give, devise and bequeath the residence property occupied by me to my wife, Bertha Howland. I also give and bequeath to her all household furniture, equipment and furnishings of the home I reside in at the time of my death. In addition I give and bequeath to her one-half of my personal property including money on deposit, stocks and securities.

'Item III. If she survives me, I give and bequeath to my sister, Mary A. Howland, of Des Moines, Iowa, the remaining one-half of my personal property, plus the undivided one-half interest in the residence property located at 1712 Clark Street, Des Moines, Iowa, which I own as an heir of my deceased mother.

'Item IV. The provisions made in Item II hereof for my wife if she survives me, shall be in lieu of all other claims she may be entitled to make and also in lieu of any widow's allowance pending administration of my estate.'

Item V nominates plaintiff as executor to serve without bond.

The sister Mary, named in Item III, supra, predeceased testator in February 20, 1962. He acquired under her will her undivided half interest in the Clark Street property. He previously owned the remaining interest therein, as Item III states. The trial court held the property bequeathed to Mary under Item III passed to decedent's heirs as intestate property. Bertha, the widow, contends all such property except the half interest in the Clark Street property acquired from Mary passed to her (Bertha) and the will should be so construed. She concedes this half interest in the Clark Street residence descended as intestate property.

The argument for Bertha is that it was testator's intent that if either of the two beneficiaries named in the will predeceased him, the property bequeathed to her would pass to the survivor and the will should be construed to so provide.

Those who claim as testator's heirs argue and the trial court held the will contains no residuary bequest of the property bequeathed to Mary, the will is unambiguous and testator's intent must be ascertained from the instrument itself, the bequest to Mary lapsed and--there being no residuary clause--descended as intestate property. We agree with this holding.

I. Reference be made to the extrinsic evidence offered by Bertha to support her argument and that offered by defendants to meet it.

Decedent and Bertha were married in 1939 but did not live together until 1943. They had no children. Decedent was devoted to his widowed mother and unmarried sister Mary, with whom he lived until 1943. Bertha was not invited to their home on Clark Street nor was she welcome there. None of decedent's heirs lived in Des Moines during the last 50 years; most of them lived in the East. Decedent's father died when he was ten and his mother, with decedent, Mary and a daughter who died in 1937, moved into the home of the mother's sister and her husband in Des Moines and they lived together several years. They were grandparents of defendant Ward S. Allen, Jr. who claims half the intestate property as decedent's only heir by reason of descent from decedent's maternal grandparents.

Bertha testified none of decedent's relatives visited their home nor did he visit them, she saw no correspondence between her husband and his relatives and he told her he had no relatives. She also said she worked for the street car company 15 1/2 years after she was married and never gave decedent less than $100 a month.

The record leaves no doubt decedent had many relatives of whom he was fully aware and with whom he corresponded occasionally (as st Christmas) and visited at times, especially the Allens and the Howlands. The latter claim ne fourth the intestate property as heirs by reason of descent from two of the four paternal great-grandparents of decedent. One defendant-heir was a student at a college near Des Moines in 1936, decedent loaned her $200, most of which she repaid and the rest of which he forgave. The sister Mary's will was prepared under decedent's direction and contained small bequests to Ward S. Allen, Jr. and three defendant-Howland heirs.

Decedent's heirs who claim the remaining one fourth of the intestate property by reason of descent from the common ancestors of his paternal grandmother (the Pierce, Chase and Cleveland heirs) are numerous and have not all been ascertained. It is doubtless true decedent did not know who all of them were.

II. Where the language of a will is ambiguous or of doubtful meaning resort may be had to extrinsic evidence as an aid in determining its meaning. However, where the language used is plain and unambiguous its meaning must be determined from the language used without resort to extrinsic circumstances. The testator's intention must be determined from what he said, not from what it may be supposed he intended to say or should have said. The question is not what testator meant to say but what he meant by what he did say.

See in support of the views just stated In re Estate of McCulloch, 243 Iowa 449, 457-458, 52 N.W.2d 67, 72, and citations; Henkel v. Auchstetter, 240 Iowa 1367, 1373-1378, 39 N.W.2d 650, 653-654; In re Estate of Eason, 238 Iowa 98, 103, 26 N.W.2d 103, 106; In re Will of Hagan, 234 Iowa 1001, 1007, 14 N.W.2d 638, 641, 152 A.L.R. 1296, 1301; 95 C.J.S. Wills §§ 591, 592. See also In re Barnes Estate, 256 Iowa ----, 128 N.W.2d 188, 191, 130 N.W.2d 227; In re Estate of Artz, 254 Iowa 1064, 1069-70, 120 N.W.2d 418, 422, and citations.

Nor is extrinsic evidence admissible to vary, contradict or add to the terms of a will or to show an intention different from that disclosed by its language. Evidence of testator's intention as an independent fact, divorced from the words of the will, is clearly inadmissible. Courts will not, from oral testimony, make a will testator perhaps intended to, but in fact did not, make. In re Estate of Roberts, 240 Iowa 160, 164, 35 N.W.2d 756, 758, and citations; 95 C.J.S. Wills § 634. See also In re Estate of Miller, 243 Iowa 920, 929-930, 54 N.W.2d 433, 438-439, 36 A.L.R.2d 139.

We find no ambiguity in the will. We do not understand Bertha contends there was a patent ambiguity but thinks there was a lant one. A latent ambiguity exists where the language used does not lack certainty but some extrinsic matter outside the will renders the meaning obscure and uncertain. A classic example is a bequest 'to my cousin John' when testator has two cousins named John. There is no evidence to indicate such an ambiguity here. In re Estate of Lepley, 235 Iowa 664, 670-672, 17 N.W.2d 526, 529, and citations (disapproved on another point in Nolte v. Nolte, 247 Iowa 868, 882, 76 N.W.2d 881, 889, 56 A.L.R.2d 854).

The extrinsic evidence offered by Bertha was evidently designed to show it is unlikely decedent intended to leave any of his property to any of those claiming as heirs. But this does not indicate an ambiguity in the will. It may indicate decedent intended to say something he did not say but courts cannot draw his will to carry out a possible intend not expressed in the will. A contrary holding would nullify the requirement that wills be in writing. In re Estate of Lepley, supra, and citations.

Indeed it may be conceded testator did not intend to will any of his property to any of his heirs other than his sister Mary. They make no claim under the will. Their claim is under the statutory rules of descent. The only way decedent could vary these rules is by making an effective gift, either expressly or by necessary implication, at variance therewith. That he did not do. Cerainly he made no express provision for the disposition of Mary's share if she did not survive decedent. None is claimed. There is a strong presumption (we have said 'very strong') decedent did not intend a bequest not expressed in the will. In re Estate of Syverson, 239 Iowa 800, 805, 32 N.W.2d 799, 801-802, and citations; In re Estate of Eason, supra, 238 Iowa 98, 101-103, 26 N.W.2d 103, 105-106; In re Rosnow's Will, 273 Wis. 438, 78 N.W.2d...