Croulek's Estate, In re

• Decision Date: 11 January 1961
• Docket Number: No. 50155,50155
• Citation: 107 N.W.2d 77,252 Iowa 700
• Parties: In the matter of the Estate of Anna Meka CROULEK, Deceased.
• Court: Iowa Supreme Court

Page 77

107 N.W.2d 77

252 Iowa 700

In the matter of the Estate of Anna Meka CROULEK, Deceased.

No. 50155.

Supreme Court of Iowa.

Jan. 11, 1961.

Louis J. Kehoe, Washington, Edward F. Rate and W. J. Jackson, Iowa City, for appellants.

Clearman, Oehler, Barker & Meeker, and F. B. Olsen, Iowa City, for appellees.

THORNTON, Justice.

Decedent, Anna Meka Croulek, and her husband, Joe A. Croulek, both executed their last wills on November 23, 1955, before the same witnesses at the same place, and in identical language, except for the transposition of names of said wife and husband in each will. The wills were reciprocal, each giving the other all of the property owned at death without any provision for third parties after the death of the surviving spouse. Item 3 of each will is as follows:

'Item 3. My husband (wife), _____, is executing a will containing provisions similar to those herein. However neither this will nor the will of my said husband (wife), _____ is executed pursuant to any agreement or contract between us with reference to the making of such wills and I reserve the right to modify, alter or reject this will at any time.'

Joe A. Croulek died testate November 4, 1959. His will was admitted to probate and decedent Anna Meka Croulek qualified as executrix. She died December 3, 1959, and her will was admitted to probate. They were childless.

The administrator with the will annexed brought this action pursuant to rule 264, Rules of Civil Procedure; 58 I.C.A., for construction of the will and directions for distribution to the proper parties

The heirs of Joe A. Croulek contend the will is valid and the property passes to them under the anti-lapse statute, section 633.16, Code of Iowa 1958, I.C.A., and all of the property passes to them. The heirs of Anna Meka Croulek contend the wills were mutual and reciprocal or reciprocal and should be construed to be the will of the first to die, the will of Anna Meka Croulek has no further force and effect, and the property passes to them as intestate property.

The trial court held the intention expressed in Item 3 of the wills was clear, the wills were not mutual and the property of Anna Meka Croulek passed to the heirs of Joe A. Croulek under the antilapse statute. We agree.

The questions presented are the effect of the denial of mutual wills clause and the application of the anti-lapse statute.

I. The denial of mutual wills clause has not been passed on by this court and

we are not cited to nor have we found authority from other jurisdictions construing this type of clause. A similar clause is found in the Iowa Supplement to Newhoff's Standard Clauses for Wills appearing in the Workshop Outlines of the Eighty-fifth Annual Meeting of the Iowa State Bar Association prepared by Professor John C. O'Byrne, College of Law of the State University of Iowa. As noted on page four of the Iowa Supplement the finding of a contract for the benefit of third parties will disqualify for the marital deduction any property passing subject to such contract. Estate of Awtry, 22 T.C. 91, reversed as to joint tenancy property, 8 Cir., 221 F.2d 749. This indicates at least one of the reasons for such a clause. A similar clause is also found in Modern Legal Forms, '59 P.P., § 9621.2. There is no comment in either work as to the construction of such a clause.

In construing wills it is our duty to ascertain the intention of the testator and if reasonably possible to give effect to all of the will's provisions. And where the intention expressed in the will is clear and unequivocal there is no need for construction. Culver v. Hess, 234 Iowa 877, 14 N.W.2d 692; and Anderson v. Anderson, 227 Iowa 25, 286 N.W. 446. See also Fischer v. Mills, 248 Iowa 1319, 85 N.W.2d 533, 63 A.L.R.2d 1166.

As we view this clause it is plain and unambiguous. It specifically recognizes the other person is making a will containing similar provisions, and states neither will is executed pursuant to any agreement or contract between such persons with reference to making such wills and goes on to reserve the right to change the disposition of the property at any time. It would be difficult to state the intention to have the wills construed as not being mutual or contractual in plainer terms. The reservation of the right to change the disposition at any time shows the same clear intent. One of the burdens of mutual or contractual wills is, the disposition of property cannot be changed or a new and different will executed before the death of the other person without notice to the other. And where provision is made for third persons, after the death of the first to die a change of disposition can not then be made. Johansen v. Davenport Bank & Trust Co., 242 Iowa 172, 178, 46 N.W.2d 48; Luthy v. Seaburn, 242 Iowa 184, 190, 46 N.W.2d 44, 48; and In re Estate of Ramthun, 249 Iowa 790, 89 N.W.2d 337. We hold the intent of decedent and her husband as there expressed is to have these wills construed and the property therein devised or bequeathed to pass in the same manner and to the same persons as if the wills were executed on different occasions without any knowledge thereof by the other person and without any reference to the other. It was her intent to have this will construed as if she alone had made a will. Under the record these wills are not mutual or the result of a contract.

II. Appellants argue the wills need only be reciprocal to be considered the single act of the makers effective only as the will of the first to die and not of the survivor.

In our recent case of Father Flanagan's Boys' Home of Boys Town, Nebraska v. Turpin, Iowa, 106 N.W.2d 637, we pointed out the difference in 'joint,' 'mutual' and 'reciprocal' wills. We there said at page 640 of 106 N.W.2d:

'A will is 'joint' if it is the will of two or more persons in one instrument; 'reciprocal' if it contains reciprocal gifts of property among two or more makers; but it is 'mutual' in Iowa only if it is executed pursuant to an agreement. * * * The term 'mutual' is properly applied to wills only when there is evidence sufficient to show a binding agreement as to disposal of the property of the makers in a certain way. If there is no such evidence, the wills may be reciprocal, but they are not mutual.'

With this distinction in mind we find there are three cases in which this court has held wills, wherein the makers made provision for each other and none for third persons after the death of the first to die, to be effective only as the will of the first to die. They are, Anderson v. Anderson, 181 Iowa 578, 164 N.W. 1042; Maurer v. Johansson, 223 Iowa 1102, 274 N.W. 99; and Maloney v. Rose, 224 Iowa 1071, 277 N.W. 572.

In Maloney v. Rose, supra, at page 1074 of 224 Iowa and at page 574 of 277 N.W., and in Maurer v. Johansson, supra, at page 1105 of 223 Iowa and at page 101 of 274 N.W., is this statement:

'Mutual wills are those which are executed pursuant to an agreement or compact between two or more persons to dispose of their property in a particular manner, each in consideration of the other. Such wills, if they contain no provisions for third persons, constitute a single will and is the will of the first to die, and has no further existence as...