Benz v. Paulson
| Decision Date | 07 June 1955 |
| Docket Number | No. 48666,48666 |
| Citation | 70 N.W.2d 570,246 Iowa 1005 |
| Parties | Opal L. BENZ, as surviving spouse of George H. Benz, deceased, and as Administratrix of the Estate of the said George H. Benz, deceased, Appellant, v. Louise PAULSON, Blossom Baker and Fred Benz, Appellees, Nellie Benz, Widow of Fred Benz, deceased; G. F. Benz, Matilda Ann Benz, Beata Benz, Christina Cabrina Benz, Corinne Louise Benz, minor children of Fred Benz, deceased, Substituted Appellees. |
| Court | Iowa Supreme Court |
Don H. Jackson and Proctor R. Perkins, Council Bluffs, for appellant.
H. C. Churchman and John P. Churchman, Council Bluffs, for appellees.
On May 31, 1921, George H. Benz, then unmarried, executed a purported last will and testament, the material part of which is this:
'That all my real and personal property be conveyed to my Mother, Matilda Benz, Council Bluffs, Iowa.
'(s) George H. Benz.'
Then followed the usual form certificate of two attesting witnesses. All of the will except for the name 'George H. Benz' in the first sentence and the words and the signature 'George H. Benz' immediately following was a printed form. The excepted words were in the handwriting of George H. Benz. The record shows that the will was executed as a requirement of the Scottish Rite Temple of the Masonic Order at Des Moines, into which George H. Benz was about to be initiated. Although the matter is not entirely clear, it was apparently left with the registrar of the Temple, at least for some time after its execution. Proper execution, for the purposes of this case, is conceded.
By stipulation of fact these matters appear: George H. Benz married the appellant herein, Opal L. Benz, on July 16, 1921. They resided during their married life in Council Bluffs, Iowa, and no children were born to them. George H. Benz, hereafter referred to as the decedent, died a resident of said city on May 4, 1953, and on June 3, 1953, the appellant Opal L. Benz filed a petition for a grant of letters of administration upon his estate; said petition reciting that decedent died intestate. Letters of administration were duly issued to the appellant on June 5, 1953. About August 4, 1953, there was filed with the clerk of the district court of Pottawattamie County the instrument above set forth. On December 7, 1953, a petition for probate of the purported will was filed, notice prescribed and the date for hearing fixed for December 14, 1953. The notice was duly given as ordered. On December 10, 1953, the court stayed all proceedings relative to the probate of the will until the action for declaratory judgment was determined.
The action for declaratory judgment was commenced by the appellant widow on October 23, 1953. It alleged that the writing claimed to be the will of George H. Benz is not a testamentary bequest or devise, because it is an attempt to direct that property be 'conveyed', is an attempt to direct a person or persons unknown to convey decedent's property to his mother, and was intended to be effective as a gift to her only if she was living at the time of the death of decedent, and there was no intent to bequeath after-acquired property. The same points are elaborated throughout the petition by allegations that Matilda Benz must have survived her son in order to take under the will; that she having died before him, the attempted gift never became effective, but lapsed; and that the provisions of section 633.16, Code of Iowa 1950, I.C.A., the 'anti-lapse' statute, therefore never became effective. The prayer of the declaratory judgment petition was that the court decree the claimed will is not effective to create a gift or devise to Matilda Benz, that her heirs, the defendants, take nothing under it, and that plaintiff, as the surviving spouse of a decedent dying without issue be adjudged to be entitled to the first $15,000 of the estate and one-half of the remainder.
The defendants, two sisters, and a brother of George H. Benz, (and so two daughters and a son of Matilda Benz) answered, alleging the validity of the will, that it created a bequest to Matilda Benz of all the property of the estate of George H. Benz, and that Matilda Benz having died intestate prior to the death of George H. Benz, the answering defendants were entitled to the benefits provided by section 633.16, supra, and to take the share bequeathed to Matilda Benz. Before the case was reached for trial, the defendant Fred Benz died, leaving a surviving widow and five minor children, who were substituted as defendants.
It appears without dispute that the father of George H. Benz died intestate on December 4, 1941, and Matilda Benz, his mother, died intestate on June 30, 1943. It also appears that all real estate in which George H. Benz had any interest at the time of his death was held in joint tenancy with Opal L. Benz, the appellant; and that the personal property, which is all of his estate that could be affected by the will, was about $15,000 in value. No question is made but that the appellant, as the surviving widow, has the right if the bequest to Matilda Benz is upheld and the defendants are entitled to take under the anti-lapse statute, to reject the will and take her distributive share of one-third. The defendants in their answer prayed that appellant be named as administratrix with the will annexed. The court decided all issues in favor of the defendants.
I. The appellant's contentions revolve chiefly around the use of the words 'be conveyed' as set out in the purported will. It is said, first, that the instrument is not a will, because the words quoted are foreign to wills, that the instrument reveals no testamentary intent and fails to make any testamentary disposition of the property. The word 'convey', it is urged, has no meaning in relation to personal property, but relates only to realty; and its use here is such that if the word has any significance, it appears someone unnamed was to make over the property, at the death of the decedent, to his mother, Matilda Benz.
We are of course concerned in the first instance with the intent of the maker of the will. That it was intended to be a will is too clear to require extended discussion. It is described as 'this my last will and testament'; and it is signed and witnessed with the formalities requisite to testamentary instruments. The appellant's case at this point must depend entirely upon the contention that the writing in question is meaningless because of the use of the words 'be conveyed', in that they have no relation to personalty, and if they do, they effectuate nothing because they do not directly bequeath anything to Matilda Benz, but merely direct someone unspecified to 'convey' to her after the death of the maker.
'Convey' is a word used in the law, in its technical application, to refer to deeds or other instruments passing title to real estate. But we are concerned here, not with the niceties of technical legal terms, but with the intent of the maker of the instrument. In re Estate of Longer, 108 Iowa 34, 78 N.W. 834, has many aspects of similarity to the case at bar on this point. There the language of the paper before the court was "I agree to will". The trial court held there was no bequest or devise to any of the persons named, and the instrument was not sufficient to constitute a will. But we said, at pages 36 and 37 of 108 Iowa, at page 834 of 78 N.W.:
(Italics supplied.)
The words "I agree to will" were held to mean nothing more than 'I do will.'
Following the sound reasoning of the Longer case, supra, we hold that the words 'be conveyed' mean no more than 'devise and bequeath'. The language is not that of a skilled legalist, and the record makes it evident that the will was drawn hurriedly and with little time for thought or preparation. At this point we find appropriate language used by Justice Weaver, in Flynn v. Holman, 119 Iowa 731, 738, 94 N.W. 447, 449:
The intent of the testator to leave all his property to his mother is evident.
The distinction between deeds or contracts on the one hand, and testamentary papers on the other, is discussed at length in Shaull v. Shaull, 182 Iowa 770, 166 N.W. 301, 11 A.L.R. 15. Numerous authorities are there cited and analyzed. It would serve no good purpose to study them further here. It will be sufficient to quote the general rule laid down in Burlington University v. Barrett, 22 Iowa 60, 72, and approved in the Shaull case, at page 774 of 182 Iowa, at page 302 of 166 N.W.:
"If the instrument passes a present interest, although the right to its possession and enjoyment may not accrue till some future time, it is a deed or contract; but if the instrument does not pass an interest or right till the death of the maker, it is a will, or testamentary paper."
II. The major contention of the appellant is thus stated:
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...depends upon the contrary intention clause ... the burden of proof rests upon such party to the action."); Benz v. Paulson, 246 Iowa 1005, 70 N.W.2d 570, 574 (Iowa 1955) ("The burden was upon the appellant to show from the terms of the will a `contrary intent'; that is, that the anti-lapse ......
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