Clarken v. Brown

• Decision Date: 19 October 1965
• Docket Number: No. 51747,51747
• Parties: T. W. CLARKEN, Marie Hanks and Margaret Pontius, Appellants, v. Francis H. BROWN et al., Appellants, and Guy Walters, Lee Walters, Melvin Walters, Harriett Weiss, Margaret Weiss and Evelyn Bracken, Appellees.
• Court: Iowa Supreme Court

Page 376

137 N.W.2d 376

258 Iowa 18

T. W. CLARKEN, Marie Hanks and Margaret Pontius, Appellants, v. Francis H. BROWN et al., Appellants, and Guy Walters, Lee Walters, Melvin Walters, Harriett Weiss, Margaret Weiss and Evelyn Bracken, Appellees.

No. 51747.

Supreme Court of Iowa.

Oct. 19, 1965.

Sackett & Sackett, Spencer, Albert Habhab and Donald J. Mitchell, Fort Dodge, for appellants.

Alan Loth, Fort Dodge, for appellees.

MASON, Justice.

This is a partition action to determine the shares in which a 160-acre tract of land in Webster County is owned. The case was submitted to the trial court upon facts admitted by the pleadings, the will of T. W. Carken and a stipulation of record.

T. W. Clarken died testate in 1939 owning the land in question, leaving no spouse nor issue. Both parents were dead. In item three of testator's will, probated in 1939, he gave a life estate to his brother, G. V. Clarken who died in 1964. Item eight of the will provided: 'At the death of my brother, G. V. Clarken, I devise and bequeath said above described farm and land to my lawful heirs, as fixed by the Statutes of the State of Iowa.'

Interpretation of item eight gives rise to the lawsuit.

Testator had eight brothers and sisters. G. V. Clarken, F. M. Clarken, Dora McCardle, Mary L. Walters, John Clarken and William Clarken survived him; two others had predeceased him, a sister whose only child was Hazel Brown, and a brother Henry. Before the death of the life tenant, the remaining brothers and sisters and Hazel Brown died. These deaths create the dispute over how the will devised the fee.

The contending parties all claim under the will, partition was not contested, ownership of the shares is the dispute.

Appellants contend the remainders created by item eight of the will were contingent until the death of life tenant. Appellees claim the remainder vested at testator's death in his heirs and, therefore, their later deaths did not affect the shares.

The trial court entered a decree of partition by sale, later a determination of points of law concluding there were two legal questions involved, 1) Was the remainder a vested or contingent one? 2) Was the distribution to be per capita or per stirpes?

The trial court held it was testator's intention to vest the remainder at his death and the devise should be per stirpes and not per capita.

F. M. Clarken and Dora McCardle left no spouse nor issue. After testator's death, Dora McCardle and her then husband conveyed an undivided one-eighth interest in the land involved to Mary L. Walters and her then husband. F. M. Clarken conveyed all his right, title and interest in said land to Mary L. Walters. Mary L. Walters and her spouse conveyed all their right, title and interest in the land to their children, Guy A. Walters, Lee H. Walters, Melvin R. Walters, Harriett Weiss, Evelyn Bracken and Margaret Weiss, defendants who are appellees herein. All deeds were recorded before 1964.

After reciting its conclusions as to testator's intention, the court in a supplemental decree directed proceeds from the sale, which had been previously ordered, after certain deductions, be divided into eight parts, one part to each of the six brothers and sisters who survived testator, including the life tenant, one each to the predeceased sister and brother. The court awarded Mabel Clarken, surviving widow of life tenant, one third of the share awarded to him; Myrtle Clarken, surviving widow of John Clarken, one third of John's share; Bertha Clarken, surviving widow of William Clarken, one third of William's share.

Under the division the children of William Clarken, John Clarken and G. V. Clarken took the remaining two thirds of their father's one-eighth share, per stirpes. The court confirmed and established the three-eighths shares of F. M. Clarken, Dora McCardle and Mary L. Walters in the children of Mary L. Walters, who were also grantees in the quit claim deed hereinbefore referred to; one-eighth share in Henry's children and the remaining one-eighth share in the grandchildren of the predeceased sister.

From the supplemental decree thus determining the shares and ownership in said proceeds, two appeals are taken.

Neither plaintiff, Margaret Pontius, nor the intervenors, Mabel Clarken, Bertha Clarken and Myrtle Clarken, appeal.

Plaintiffs, T. W. Clarken and Marie Hanks, children of life tenant, rely on two propositions for reversal, arguing item eight created a contingent remainder and the court erred in allowing Mabel Clarken, their father's surviving spouse, a one twenty-fourth share. Plaintiffs assert they are each entitled to a one-twelfth interest, taking his share equally, their stepmother taking nothing as she is not an heir under the laws of intestate succession. They contend a proper interpretation of item eight creates a dubious and uncertain situation as to what persons will take testator's property. If this theory be correct, the children of Henry Clarken, John Clarken, William Clarken, Mary L. Walters and Hazel Brown would each take a one-sixth share per stirpes.

Those defendants who have appealed assign two propositions for reversal. 1) The court erred in holding the remainder interest vested at the time of testator's death and decreeing distribution accordingly. 2) The court erred in holding the testator's lawful heirs took per stirpes and in decreeing distribution accordingly. These defendants claim each was entitled to a one twenty-eighth share of the proceeds on the theory the will created contingent remainder interests, subject to G. V. Clarken's life estate. In support of their position appellees contend by using the phrase, 'At the death of my brother, G. V. Clarken, I devise and bequeath said * * * farm to my lawful heirs * * *' testator clearly indicated his intention that the devise of the remainder interest in his farm vested at life tenant's death rather than at his death. They further urge that any other interpretation would result in G. V. Clarken taking not only a life estate in all of the farm but also a remainder interest in one eighth of it.

Defendant Francis H. Brown claimed a one-twelfth interest as a contingent beneficiary under testator's will, alleging F. M. Clarken and Dora McCardle, testator's brother and sister, who predeceased life tenant and died without issue, were also merely contingent beneficiaries and acquired no interest in the land nor did anyone claiming by, through or under them as they had no vested interest in the property to convey.

Those defendants who are appellees allege in their counterclaim they were owners of three eighths of the land by virtue of the conveyances from F. M. Clarken, Dora McCardle and their mother, Mary L. Walters. They maintain the will gave a life estate, with a vested remainder in those comprising testator's heirs at his death, and in the shares specified by the Iowa statutes, further contending that the phrase, 'at the death of' the life tenant, refers to the time for enjoyment of the remainder, not to its vesting and his death does not affect the share.

The cardinal and governing rule in the construction or interpretation of a testamentary disposition is to arrive at the intention of the testator. The complete will and all terms thereof must be considered.

The intention of the testator must be gathered from the words of the will itself, if their meaning as a whole is clear, unambiguous and unequivocal. The question is not what the testator may have meant, but what did he say, what is the meaning of the words he actually used in the will? All rules and canons of construction serve no purpose when the testamentary intention fairly and clearly appears from the testator's words in the will itself.

We are committed to and have in our various recent decisions applied the common law definitions.

Under the common law rule a vested remainder whereby the estate passes by the conveyance but possession and enjoyment are postponed until the particular estate is determined is where the estate is invariably fixed to remain in certain determined persons. A contingent remainder is limited to take effect to a dubious or uncertain person or upon a dubious or uncertain event.

In support of each of the above propositions see Schau v. Cecil, 256 Iowa ----, 136 N.W.2d 515, from which they are taken. See also In re Rahfeldt's Estate, 253 Iowa 72, 111 N.W.2d 303.

I. We are satisfied that...