Bierstedt's Estate, In re

Decision Date15 January 1963
Docket NumberNo. 50760,50760
PartiesIn the Matter of the ESTATE of Herman BIERSTEDT, Deceased. Walter BIERSTEDT, Appellant, v. Meta BERNINGHAUS and Theodore Bierstedt, Appellees.
CourtIowa Supreme Court

Hutchison & Hutchison, and James H. Andreasen, Algona, for appellant.

Linnan, Lynch & Straub, Algona, for appellees.

THORNTON, Justice.

This is an action to construe the will of Herman Bierstedt, deceased. Mr. Bierstedt executed his will in 1949. The will was filed for probate February 14, 1961. In pertinent part it provided:

'SECOND, * * * I * * * bequeath to my daughter Matae Berninghaus One Dollar, as she has already been provided for.

'THIRD. To my son Theodore Bierstedt, I * * * bequeath One Dollar, as he has received help and gifts from me heretofore.

'FOURTH. To my son Walter Bierstedt, I * * * devise * * * [a described 80 acres], subject to existing Liens.

'FIFTH. Any personal property remaining after the above provisions have been taken care of, shall be divided equally between my three children, as named above.'

On the petition of the three children named, the court on November 30, 1959, found Mr. Bierstedt to be a person of unsound mind and incompetent to manage his affairs and care for his property and appointed a bank as his guardian. The court's order was, '* * * IT IS NOW ORDERED, ADJUDGED AND DECREED that the defendant, Herman Bierstedt, is now judicially declared to be a person of unsound mind and wholly incompetent and unable to manage his affairs or take care of his property * * *' thus creating a presumption of lack of testamentary capacity. Ward v. Sears, 247 Iowa 1231, 1241, 78 N.W.2d 545; Olson v. Olson, 242 Iowa 192, 212, 46 N.W.2d 1, 12, 40 A.L.R.2d 1; In re Estate of Willer, 225 Iowa 606, 281 N.W. 155; and citations in each. No other evidence bearing on testamentary capacity was offered. See Bishop v. Fullmer, 112 Ohio App. 140, 175 N.E.2d 209. In the guardianship it became necessary to apply for authority to sell the 80 acres described in paragraph four of the will to care for the ward. The 80 acres were sold on contract with court approval. The sale price was $25,000 payable in installments and by the assumption of a mortgage. After Mr. Bierstedt's death February 3, 1961, the guardianship was closed and the guardian assigned the contract showing a balance due thereon of $13,384.95 to the executor.

The question presented has not been passed on by us. It is, does the sale of the real estate by the guardian, with court approval, while the testator was incompetent, work an ademption of the specific devise to the son, Walter? The trial court held the devise was adeemed.

Appellant does not contend the devise is not adeemed to the extent the proceeds of the sale were used for the care of the ward and the expense of the guardianship. He claims only the balance due on the contract with the purchaser.

I. The term ademption was originally applied only to wills of personalty. It is now applied to both wills of personalty and realty. See section 633.15, Code of Iowa, 1962, I.C.A.; Warren, 'The History of Ademption,' 25 Iowa Law Review 290; and Lewis v. Hill, 387 Ill. 542, 56 N.E.2d 619. We so use it. In re Estate of Sprague, 244 Iowa 540, 57 N.W.2d 212; In re Estate of Keeler, 225 Iowa 1349, 282 N.W. 362; and see In re Estate of Brown, 139 Iowa 219, 224, 117 N.W. 260. The same meaning is attached to the term ademption in either case and the same principles apply.

Both parties agree the devise of the 80-acre farm to Walter is a specific devise. Henderson v. Green, 34 Iowa 437, 439. It is also clear if the testator had disposed of the 80 during his lifetime while competent, the devise would be adeemed. In re Estate of Sprague, supra, and In re Estate of Keeler, supra. This is the majority rule. See 57 Am.Jur., Wills, p. 1085, § 1585, p. 1087, § 1586; and Annotation, 51 A.L.R.2d 770.

Ademption means 'a taking away.' For our purpose if the particular piece of property, real or personal, is not found in the estate and the bequest or devise cannot be fulfilled there is said to be an ademption. The history of the doctrine of ademption shows there has been a change of thought as to the proper basis for the doctrine through the years. Warren, 'The History of Ademption,' 25 Iowa Law Review 290, 325.

The change has been from looking to the intention of the testator to the strict identity of the subject of the gift and back to what may be called a modified intention theory. Reference is made to the identity rule and the intention rule by most authorities. See, Warren, 'The History of Ademption,' 25 Iowa Law Review 290; 4 Page on Wills (Lifetime Ed. 1941), Chapter 43 § 1527, § 1530; and Annotation, 51 A.L.R.2d 770.

Where the testator is competent and disposes of the subject of the gift, the gift is adeemed; where the testator is incompetent and the subject of the gift is sold by a guardian with court approval, the gift is only adeemed to the extent the proceeds are used for care and maintenance of the ward. The only question of intention involved is the opportunity of the testator to change the will. This opportunity is denied the incompetent testator. No question of his intentions other than expressed in the will is involved. Where, as here, the testator is incompetent and under guardianship, a sale by the guardian does not work an ademption so far as the proceeds are traceable. This is the majority view in this country. Bishop v. Fullmer, 112 Ohio App. 140, 175 N.E.2d 209; Walsh v. Gillespie, 338 Mass. 278, 154 N.E.2d 906; Wilmerton v. Wilmerton, 7 Cir., 176 F. 896, certiorari denied 217 U.S. 606, 30 S.Ct. 696, 54 L.Ed. 900; Lewis v. Hill, 387 Ill. 542, 56 N.E.2d 619; Buder v. Stocke, 343 Mo. 506, 121 S.W.2d 852; Morse v. Converse, 80 N.H. 24, 113 A. 214; Duncan v. Bigelow, 96 N.H. 216, 72 A.2d 497; In re Cooper's Estate, 95 N.J.Eq. 210, 123 A. 45, 30 A.L.R. 673; Roderick v. Fisher, 97 Ohio App. 95, 122 N.E.2d 475, 51 A.L.R.2d 792; Annotation, 51 A.L.R.2d 770; Irwin Estate, 23 Pa.Dist. & Co.Rep.2d 33; Warren, 'The History of Ademption,' 25 Iowa Law Review 290, 324-325; and 4 Page on Wills, (Lifetime Ed. 1941), § 1530, pp. 387-388.

A contrary view is taken in Canada and England, see Annotation, 51 A.L.R.2d 781, in New York, In re Ireland's Estate, 257 N.Y. 155, 177 N.E. 405, and in Vermont, In re Barrow's Estate, 103 Vt. 501, 156 A. 408. In Pennsylvania the latest case from that state to come to our attention is Irwin Estate, supra, decided in 1960, which follows the majority view citing Annotation, 51 A.L.R.2d 770.

The question under consideration is governed by statute in a number of states. See Annotation, 51 A.L.R.2d, 770, 800; Shure v. Dahl, 80 N.W.2d 825, 62 A.L.R.2d 953 (N.D. 1957); Annotation, 62 A.L.R.2d 958; and Warren, 'The History of Ademption,' 25 Iowa Law Review 290, 325. We have no such statute.

II. Appellees vigorously urge we are committed to the identity theory and the court does not have the power to substitute the proceeds for the real estate specifically devised. This argument is based on In re Estate of Sprague, 244 Iowa 540, 57 N.W.2d 212; In re Estate of Keeler, 225 Iowa 1349, 282 N.W. 362; In re Estate of Miller, 142 Iowa 563, 119 N.W. 977; In re Estate of Bernhard, 134 Iowa 603, 112 N.W. 86, 12 L.R.A.,N.S., 1029; In re Brann, 219 N.Y. 263, 114 N.E. 404, L.R.A.1918B, 663; and In re Ireland's Estate, 257 N.Y. 155, 177 N.E. 405. Only the Ireland case deals with a testator under guardianship. In the other cases the testators were competent. In In re Brann, supra, at pages 405-406 of 114 N.E., at page 665 of L.R.A.1918B, is this statement, '* * * The opportunity to change it was given when a codicil was signed; and with knowledge of the condition of the estate, the clause was left same. * * *'

This court has referred to the intent of the testator in the above cases as follows. In the Bernhard case at page 607 of 134 Iowa, page 87 of 112 N.W., we said:

'* * * The contract under consideration is conclusive evidence of the fact that Bernhard intended to dispose of this land and to receive the purchase money, if the vendees named therein determined to take the land and pay the purchase price. It is evident, therefore, that he could not have intended that his will should operate upon the land, and that it should go to the appellants in virtue of the eighth clause thereof.'

In Keeler, at page 1357 of 225 Iowa, page 366 of 282 N.W., after quoting from In re Brann, supra, as pointed out, we said,

'Mrs. Keeler had knowledge of the condition of her estate after she canceled the note and mortgage. She knew that she had taken title to this real estate but she did not change the will although she lived approximately a year and a half after she took title.'

We also pointed to dissatisfaction with the result, '* * *, if testatrix had known the consequences, we feel she would have changed her will.'

In Sprague, at page 546 of 244 Iowa, page 216 of 57 N.W.2d, we said:

"Mrs. Sprague had knowledge of the condition of her estate after she entered into the contract to sell the Cedar Rapids real estate. She knew that she had acquired an undivided interest in a contract to sell the real estate and yet she did not change her will, although she lived for some considerable time...

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24 cases
  • Douglas v. Newell, s. 85-105
    • United States
    • United States State Supreme Court of Wyoming
    • 16 Mayo 1986
    ...not found in the estate and the bequest or devise cannot be fulfilled there is said to be an ademption. * * * ' In Re Bierstedt's Estate, 254 Iowa 772, 119 N.W.2d 234, 236 (1963). * * * * * " 'It would consequently seem better, instead of attempting to deduce from the cases any all-inclusiv......
  • Stewart v. Sewell, No. M2003-01031-COA-R3-CV (TN 4/14/2005), M2003-01031-COA-R3-CV.
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    ...partial ademption when property is disposed of by a fiduciary of an incapacitated, incompetent or disabled person. Estate of Bierstedt, 119 N.W.2d 234 (1963), reversed an earlier ruling of total ademption, holding that a guardian's sale of a testator's farm while the testator was incompeten......
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    ...that when testator sold the real estate specifically devised in Paragraph III the devise was thereby adeemed. In re Estate of Bierstedt, 254 Iowa 772, 774, 775, 119 N.W.2d 234, 236, and citations; Stake v. Cole, 257 Iowa 594, 133 N.W.2d 714, 716, 717; 96 C.J.S. Wills § 1177a, c, pages 993, ......
  • In re Estate of Greenamyre, M2003-00964-COA-R3-CV.
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    ...when property is sold by a guardian or conservator of an incapacitated, incompetent or disabled person. Iowa, in Estate of Bierstedt, 254 Iowa 772, 119 N.W.2d 234 (1963), reversed an earlier ruling of total ademption, and held that a guardian's sale of a testator's farm while the testator w......
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