Barnes' Estate, In re

• Decision Date: 05 May 1964
• Docket Number: No. 51294,51294
• Citation: 256 Iowa 1043,128 N.W.2d 188
• Parties: In the Matter of the ESTATE of Bernard C. BARNES, Deceased.
• Court: Iowa Supreme Court

Page 188

128 N.W.2d 188

256 Iowa 1043

In the Matter of the ESTATE of Bernard C. BARNES, Deceased.

No. 51294.

Supreme Court of Iowa.

May 5, 1964.

As Amended on Denial of Rehearing July 15, 1964.

Albert J. Todd and Herrick, Langdon, Sandblom & Belin, Des Moines, for Iowa-Des Moines National Bank, Executor, appellant.

Hansen, Wheatcraft, Galvin & McClintock, Des Moines, for Kathryn V. Barnes and Walter B. Barnes, appellees.

LARSON, Justice.

Testator's widow, Kathryn V. Barnes, and his adult son, Walter B. Barnes, applied to the court for construction of his will and codicil now in the course of probate in the District Court of Polk County, Iowa. They also asked, pursuant to Rule 264, R.C.P., 58 I.C.A., that the court declare on three specific matters relating to the distribution of certain unused portions or residue of trust assets in the estate. Testator died October 31, 1962, leaving a gross estate of almost one million dollars. His wife had lived apart from him for 25 to 30 years, and Walter was the sole issue of this marriage. This appeal by the executor was authorized as an estate expense, and from that order the appellees cross-appeal.

The trial court held that Paragraph VII of the will was void as against public policy and declared the undisposed corpus of two trusts established for the benefit of testator's secretary and his sister constituted reversionary interests which vested immediately upon testator's death, and each unused portion, when determined, should be paid to the son or his heirs.

Testator's will, after making certain specific bequests, provided in Paragraph VI that all the rest, residue and remainder of his property was devised to the Iowa-Des Moines National Bank in trust to hold, manage and distribute as follows: One half of the assets 'to be held for the use and benefit of my son Walter B. Barnes to be paid him under the terms and provisions as hereinafter set forth'; one fourth of the assets 'to be held for the use and benefit of my secretary Sara E. Smith to be paid her under the terms and provisions as hereinafter set forth'; and one fourth of the assets 'to be held for the use and benefit of my sister Margaret Barnes * * * to be paid her under the terms and provisions as hereinafter set forth.'

Paragraph VI then goes on to direct the trustee to pay the son $300.00 per month until he attains his 30th birthday, at which time he is to receive one third of the funds allotted to him. He was to receive another one third on his 35th birthday, and the last third on his 40th birthday. Any further monthly allowance, after receiving his first third, necessary for his maintenance and support is left to the discretion of the trustee. By codicil executed a week before his death, testator raised the ages when the son was to receive the corpus from 30 to 35, from 35 to 40, and from 40 to 45.

It directed the trustee to pay Sara E. Smith, the secretary, $250.00 per month during the term of her natural life from her allotted funds, but also provided that in the event of her marriage or death 'any trust assets remaining shall revert to and be paid into the general trust hereinbefore created.' By the codicil the monthly payments were increased to $300.00.

It directed the trustee to pay the sister, Margaret Barnes, the sum of $250.00 per month during her natural life, and provided 'the trust hereinbefore established shall terminate upon her death or upon the exhaustion of the trust estate, whichever shall be first', and any trust assets remaining were to 'revert to and be paid into the general trust hereinbefore created.' These monthly payments were also increased to $300.00 by the codicil.

Paragraph VII, which gave rise to the main dispute herein, contained this condition and direction: 'In the event Kathryn V. Barnes shall elect to demand her dower or distributive share under the law rather than to accept the provisions of this my Will on her behalf, then and in that event the Trust hereinbefore established for Walter B. Barnes shall stand revoked and become a nullity and of no legal force and effect, and the trust assets otherwise provided for said Walter B. Barnes shall revert to and become a part of the general trust heretofore created and shall be payable to Sara E. Smith and Margaret Barnes only as heretofore provided.' (Emphasis supplied.)

Pursuant to Rule 264, R.C.P., three questions were asked the court: 'A. In the event Kathryn V. Barnes elects to take dower rather than taking under the terms of the Will, how shall the residue of the estate be held and distributed? B. Upon the marriage or death of Sara E. Smith, what distribution is to be made by the trustee of the unused portion of the trust assets held for her use and benefit? C. Upon the death of Margaret Barnes, what distribution is to be made by the trustee of the unused portion of the trust assets held for her use and benefit?'

Speaking generally, it cannot be said as a matter of law that a subsequent contingent revocation or alteration of a conditional bequest in a will is illegal or void, nor that it is necessarily invalid for repugnancy. Intent and purpose play a vital part in such determinations. In re Estate of McCulloch, 243 Iowa 449, 52 N.W.2d 67; In re Estate of Yarolem, 247 Iowa 849, 76 N.W.2d 770.

Nevertheless, these are the propositions we are asked to consider herein.

I. Here, as in most will cases, the primary and controlling quest is the intention of the testator. When determined, that intention must be made effective if it is a lawful one and not against public policy. In re Estate of Artz, 254 Iowa 1064, 1069, 120 N.W.2d 418, and citations; Guilford v. Gardner, 180 Iowa 1210, 1224, 162 N.W. 261. Where the intention is clearly and unequivocally expressed, there is no need for judicial construction or extrinsic evidence, but where the language is doubtful or uncertain, extrinsic evidence may be received, not to vary the effect of the language used, but to disclose the circumstances under which the will was made and thus throw light upon the testator's intent. Wright v. Copeland, 241 Iowa 447, 452, 41 N.W.2d 102. Albert J. Todd, a practicing lawyer who prepared this will, Dee L. Frost, trust officer of the bank who visited with testator relative to the codicil to his will shortly before testator died, and Sara E. Smith, the testator's secretary, testified as to those circumstances.

It is axiomatic that a will and its codicil are to be read and construed together as one instrument executed on the date of the last codicil, and so we will consider them here as the will. Such an instrument must be taken by its four corners, and each paragraph must be read in the light of the other provisions in order to gain an understanding of what testator meant by the designations and references used. In re Estate of McCulloch, supra; In re Estate of Ritter, 239 Iowa 788, 798, 32 N.W.2d 666, 671, 2 A.L.R.2d 1301; 57 Am.Jur., Wills, § 1133-1137; 95 C.J.S. Wills § 591; In re Estate of Artz, supra.

What, then, was the intention of Dr. Bernard C. Barnes as disclosed by the language of this entire will, and by the circumstances surrounding its preparation and execution? Mr. Todd, a practicing lawyer in Des Moines for over 40 years, told of the family situation, of the estrangement of testator and his wife for some 25 to 30 years, of the maintenance of separate residences, and of the wife raising their sole child Walter, of testator's lack of faith in their ability to handle large amounts of money or property, and of testator's desire to postpone the enjoyment of his accumulated property until the son acquired mature judgment. He feared that would not occur for some time. Mr. Frost testified to testator's lack of confidence in his son's ability to handle property and said he was present when testator directed that the ages be raised when the son was to take the corpus of the trust funds allotted to him in Paragraph VI of the will and that the bequest of his automobile to the son be removed by the codicil.

Sara E. Smith, a long-time employee of the testator to whom he gave a life estate in his residence and furniture in Des Moines, testified that he did not desire to turn over his property in a lump sum. She said he preferred to fix it so it would be 'dribbled out, so to speak, so that it will not be frittered away.'

Appellant-executor takes the position that testator's obvious intent, as disclosed by the whole will and the surrounding circumstances, was to delay the time when his son would obtain access to this property, and meanwhile to make sure he had sufficient funds for his proper maintenance and support; that he intended only that the time of enjoyment be postponed until the son acquired more mature judgment; and that if his widow elected to take dower, only the reversionary rights in the general trust assets were to pass to the son or his heirs. Appellant maintains this was indicative of the sound judgment of testator who had accumulated this substantial estate, for it could be reasonably and properly assumed that Walter's mother, with such a large estate (about $300,000.00) from dower would not see their child want or proper maintenance and support until his reversionary rights matured. Obviously, if these were testator's intentions, his objects and purposes, (and there is much to sustain that view) a finding that the purpose contravened sound public policy would not seem justified.

Appellees, on the other hand, contend from a reading of Paragraph VII one may properly conclude testator was attempting to intimidate and coerce the widow into taking under the will, which gave her only the jointly-owned residence in which she had lived the past 25 or more years. They argue that if that were the sole and only purpose of this provision, the paragraph might well be declared void as against the public policy. The trial court took that view.

Since there seems to be no dispute as to the general rules as aids in the...