Blackford v. Anderson

• Citation: 286 N.W. 735,226 Iowa 1138
• Decision Date: 20 June 1939
• Docket Number: 44550.
• Parties: BLACKFORD v. ANDERSON et al.
• Court: United States State Supreme Court of Iowa

286 N.W. 735

226 Iowa 1138

BLACKFORD v. ANDERSON et al.

No. 44550.

Supreme Court of Iowa.

June 20, 1939

Appeal from District Court, Lee County; H. D. Evans, Judge.

A suit in equity to construe the last will and codicils thereto of Alexander Coleman, deceased. From a decree in favor of the plaintiff and the defendants, Lee County, its board of supervisors and members thereof, the Iowa State Highway Commission, and its members, the defendant heirs of the testator, have appealed.

The decree is affirmed.

E. W McManus, of Keokuk, L. L. Orsborn, of Red Oak, and J. R McManus and M. H. Johnson, both of Des Moines, for appellants.

J. O Boyd and D. J. McNamara, both of Keokuk, R. N. Johnson, of Ft. Madison, and John F. Burrows, of Keokuk, for appellees Lee County, Board of Sup'rs of Lee County, and its members.

Fred Everett, Atty. Gen., and T. J. Mahoney, Asst. Atty. Gen., for appellees Iowa State Highway Commission and its members.

J. R. Frailey, of Ft. Madison, for appellee Blackford.

BLISS Justice.

Alexander Coleman, a resident of Lee County, Iowa, died testate on December 17, 1933, leaving neither wife, nor direct heirs, surviving him. His testamentary papers consisted of a will and two codicils thereto. All of these were admitted to probate, without contest, on April 19, 1935, by the District Court of Lee County. The plaintiff-appellee was appointed executor, and he qualified. By these testamentary documents, the testator provided for the payment of his just debts and funeral expenses, and bequeathed and devised the residuum of his estate to the improvement and hard surfacing of certain designated highways in the counties of Henry and Lee.

On April 20, 1935, Dorr Anderson, one of the appellants in this action, and a nephew of the testator, as a resident, citizen and tax payer of Lee County, on behalf of himself and other such residents, citizens, and taxpayers, filed a petition in equity in the District Court of Lee County, against the Board of Supervisors of Lee County, and its members, praying that they be enjoined from accepting the bequest in the second codicil, and from permitting the executor to use it in the construction of a concrete paved highway in Lee County, as designated, and in the manner provided in said codicil. The grounds of the petition were that such conduct by the board would be a wrongful surrender of governmental functions. A temporary injunction was granted as prayed. Later, on his own application, and by amendment to the petition, Blackford was made a party defendant, individually and as executor. It was the intention of the appellee board of supervisors to accept the bequest, and of both the board and the executor to carry out the provisions of the testamentary disposition, had it not been for the temporary injunction. That suit is also pending on appeal in this court, Anderson v. Board of Supervisors of Lee County, 286 N.W. 735, being number 44551.

After the filing of the injunction action, and on November 10, 1936, the executor filed his petition in the action at bar, asking for a construction of the will and codicils of the testator. He joined as defendants all interested parties-all of the collateral heirs of the testator, being children or grandchildren of his brothers and sisters, Lee County, its board of supervisors, and the Iowa State Highway Commission and its members. In this action the plaintiff is seeking such a construction of the will as would permit the use of the residuary estate in the construction of the concrete paved highway as provided for in the second codicil. All of the defendants, other than the defendant heirs, joined the plaintiff in seeking this construction. The defendant heirs contend that the will and the first codicil were revoked by the second codicil, and that the latter is void, since, as they alleged, it requires the board, as a condition precedent to accepting the bequest, to delegate to the executor its governmental rights and duties, in the construction of the highway. They ask therefore that the second codicil, or the testator's last will and testament, as they term it, be declared invalid, and that the residuary assets of the testator's estate be distributed among them as intestate property, according to the laws of descent and distribution. The same contentions are made by the respective parties in the injunction suit. Both suits were brought at issue by proper pleadings. The two suits were not in fact consolidated, but by agreement they were tried together and submitted to the trial court on the pleadings, and on the same stipulation of facts. A single decree, covering both suits, was entered by the trial court against the heirs in each action. Separate appeals have been taken to this court in both suits, but parts of the written arguments in each are by reference made applicable to the other, and both were presented to the court together, in the oral submission. We will dispose of both appeals in this decision, and the determination of the appeal and the decision in number 44551 will be ruled by the decision herein.

The town of Hillsboro is in the extreme south part of Henry County. The testator lived a short distance south of it in Lee County on what he describes as the " Old Coleman Homestead." The testator had never married, and left neither issue, nor parents, surviving him. He had accumulated a large amount of both personal and real property. In order that the reader may have an understanding of the matters which are determinative of the issues involved, it is necessary to set out, in large part, the will and codicils. He executed the will on November 20, 1923, and designated it as his last will and testament, revoking all wills, theretofore made. In it he first directed the payment of his debts and funeral expenses, as soon as practicable after his death. In the fourth paragraph of the will he appointed Ira Anderson of Lee County and P. A. Blackford, of Henry County, as executors, and directed them to collect the assets of his estate and turn them as directed in the preceding paragraphs of the will. The second and third paragraphs of the will are as follows:

" 1st. I direct that my funeral expenses and just debts be first paid as soon as practicable after my death.

2nd. I give and bequeath to the County of Henry, State of Iowa, Forty Thousand Dollars (40,000.00) to be used to build a hard surface road from the Mrs. Sadie T. Clawson-Mrs. Ed H. Lee corner in east Hillsboro, Iowa, from said corner south to the Lee County, Iowa, line, said hard road to be of construction other than dirt, and to be constructed as soon as practicable after my death, and as soon as the funds are turned into the hands of said Henry County, Iowa, said road to be built under the supervision of the Board of Supervisors of Henry County, Iowa. The above sum to be expended on what is now known as the Blue Grass Road running south from Hillsboro, Iowa.

3rd. All the balance of my estate after deducting Court costs, and cost of administration, I give to the County of Lee, State of Iowa, for the purpose of continuing the building of a hard surface road on the Blue Grass Road, said building of such road to begin at the Henry County, Iowa line of such Blue Grass road, and to be continued South and east on said Blue Grass road as far as the funds will build it. Said road to be of construction other than dirt road and to be built under the supervision of the Board of Supervisors of Lee County, Iowa."

On April 15, 1926, the testator executed a codicil to the will above set out. This codicil, in full, is as follows:

" Codicil

I, Alexander Coleman, of the town of Hillsboro, County of Henry and State of Iowa, being of sound and disposing mind do make, publish and declare this to be a codicil to my Last Will and Testament, executed and signed by me on the 20th day of November, 1923, and it is my desire and intent that wheresoever there is any conflict between the said Last Will and Testament and this Codicil, that this Codicil shall prevail.

Item 1. I direct that my just debts and funeral expenses be first paid out out of my estate.

Item 2. I desire to and do hereby create and establish a trust fund for the benefit more especially of the people of Lee and Henry Counties, Iowa, and for the public benefit, as it is my desire that my estate shall be used where it will do the most good to the most people. For that purpose, I devise and bequeath as such trust fund all the rest, residue and remainder of my estate, real, personal and mixed, of which I may die seized or possessed, or to which I may be entitled, unto P. A. Blackford, Wm. Thornton and J. R. Frailey, as trustees of said trust fund for the purpose of and to be used solely for the building and constructing of a hard surfaced road under the supervision and direction of the Boards of Supervisors of Lee and Henry Counties, Iowa, and the duly authorized highway engineering officers of Lee and Henry Counties and the State of Iowa, and in accordance with the plans and specifications of said highway engineering officers of the State of Iowa.

Each Board of Supervisors and the highway engineering officers thereof in Lee and Henry Counties to have power to act hereunder only in their respective county. Any highway engineer of the State of Iowa appointed or delegated to act to carry out the provisions of this Will, shall have power to act hereunder in all matters in both Lee and Henry Counties, Iowa.

Item 3. The said road so to be constructed by this trust fund shall be and is described as follows: (Here follows a specifically designated route over part of a highway, known as the " Blue Grass Road" in Henry and Lee Counties, " as it may be laid out at the time of the acceptance of this gift to such a point on said Blue...