Ditz' Estate, In re

• Decision Date: 13 November 1962
• Docket Number: No. 50728,50728
• Citation: 117 N.W.2d 825,254 Iowa 444
• Parties: In the Matter of the ESTATE of Joe DITZ, Deceased. William BUSCH, Gerhardt Busch, Ernest Busch, Gertrude Boekelheide, Elmer Resewehr, Erwin Resewehr, Leo Resewehr, and Martha Feddersen, Plaintiffs-Appellants, v. Rose BAUTE, Harold Resewehr, Elwood Resewehr, Linda Resewehr, Phyllis Bray, Otto L. Schluter, Fred Feddersen, Lloyd Hasselbusch, and Norman Bergmann, Defendants-Appellees. Evan Hultman, Attorney General of Iowa, Intervenor.
• Court: Iowa Supreme Court

Page 825

117 N.W.2d 825

254 Iowa 444

In the Matter of the ESTATE of Joe DITZ, Deceased.

William BUSCH, Gerhardt Busch, Ernest Busch, Gertrude Boekelheide, Elmer Resewehr, Erwin Resewehr, Leo Resewehr, and Martha Feddersen, Plaintiffs-Appellants, v. Rose BAUTE, Harold Resewehr, Elwood Resewehr, Linda Resewehr, Phyllis Bray, Otto L. Schluter, Fred Feddersen, Lloyd Hasselbusch, and Norman Bergmann, Defendants-Appellees.

Evan Hultman, Attorney General of Iowa, Intervenor.

No. 50728.

Supreme Court of Iowa.

Nov. 13, 1962.

William B. Norton, Lowden, Rees, Remley & Heiserman, Anamosa, Iowa, and VanMatre & VanMatre, Mexico, Mo., for appellants.

Otto L. Schluter, Lynch, Dallas, Smith & Harman, Cedar Rapids, James T. Remley, Anamosa, and James F. Casterline, Tipton, for appellees.

Evan Hultman, Atty. Gen., of Iowa, and Bruce M. Snell, Jr., Asst. Atty. Gen., of Iowa, for intervenor.

THOMPSON, Justice.

Joe Ditz, a resident of Cedar County, died testate on May 29, 1961. His last will and testament, with one codicil, was admitted to probate on June 15, 1961. Mr. Ditz had apparently been a thrifty citizen. The inventory in his estate shows that he left real estate valued at $365,400 and personalty in the amount of $441,280.53. He left no spouse surviving him and no immediate relatives; his closest next of kin apparently being nieces and nephews and grand nieces and nephews. Several specific bequests were set up in his last will and the codicil thereto; and there were certain trusts provided.

The only part of the will under attack here is Paragraph Thirteenth. This is in the nature of a residuary clause, and attempts to set up a charitable trust. It is lengthy, but a consideration of it is essential to a discussion of the legal questions raised, and we set it out in full. 'THIRTEENTH: All the rest, residue and remainder of the property, real or personal, of which I shall die seized or possessed, or to which I may be entitled at the time of my death, I give, devise and bequeath unto Otto L. Schluter, Fred Feddersen and Lloyd Hasselbusch, in trust, for the following uses, objects and purposes:

I direct that my said Trustees distribute and contribute my said property to such organizations and institutions organized and operated exclusively for religious, charitable and educational purposes.

I hereby grant unto my said Trustees, full and complete power and authority to perform all acts and duties necessary or required to carry out and put into effect the expressed purposes of this trust; that I empower and authorize my said Trustees to take possession and control of all my said property, collect the income, rents and profits therefrom, invest and reinvest trust assets, the investments not being limited to those authorized by law for trust investment; to sell all real estate not hereinbefore specifically devised, at a price which in their judgment represents its fair market value, and personal property, all without order or approval of court; to do any and all things to the same extent and with the same effect which I could do, if living; that I grant unto my said Trustees, unrestrained and unlimited authority to select the aforesaid organizations and institutions and to direct the amount of trust funds to be devoted and contributed to any or each of such organizations or institutions; I further direct that upon death of any one or two of my said Trustees, the survivors or survivor shall continue with full power to act, and that a majority of their number shall govern the determination of trust affairs, including the selection of the organizations and institutions and the amount to be contributed to them.

That upon payment of expenses and that upon full distribution of the contributions herein authorized, this trust shall terminate and be at an end, and the Trustees shall be discharged upon final approval of their accounting by the court.'

This paragraph is said by the plaintiffs to be void because the purposes and beneficiaries are impossible of ascertainment by the court; there is no ascertainable class; it is too indefinite and uncertain as to any class which is to partake of the trust; the intention of the testator is not expressed and it is impossible for the trustees to carry out the terms; the trust does not specify how much of the income or principal is to be devoted to religious, educational or charitable purposes; no one can say what the testator meant by 'religious', 'charitable' or 'educational' purposes; discretionary trusts without purpose, objective, direction or intent shown are contrary to public policy; there is no provision for appointment of a successor trustee or trustees in case of death or incapacity of those appointed; and the absolute and uncontrolled discretion lodged in the trustees is illegal and repugnant to the laws of the State of Iowa.

The petition was attacked by the defendants by motion to dismiss and to strike. The attorney general of Iowa filed a petition of intervention alleging his duty to uphold charitable trusts, and answered, in effect making common cause with the defendants. Paragraph (1) of the defendant's motion to dismiss alleged in effect that the allegations of plaintiffs' petition summarized above consist of erroneous legal conclusions and do not set forth any tenable basis for declaring the Trust invalid. The trial court granted the motion to dismiss on this ground, the plaintiffs declined to plead over and elected to stand on the ruling, and we have this appeal from the following judgment of dismissal.

The plaintiffs' case depends on two major contentions: first, the language of the second complete paragraph of that part of the will labelled 'Thirteenth' does not make a complete sentence, there is clearly something lacking and the intention of the testator cannot be known from what is said and so there is a fatal defect in the expressed purposes of the trust; and second, there is a fatal indefiniteness in designation of the beneficiaries. These are the questions argued and so to which we give attention.

I. It will be observed by the second paragraph of Thirteenth set out above that the Trustees are directed to distribute and contribute the property to 'such organizations and institutions organized and operated exclusively for religious, charitable and educational purposes.' It is the plaintiffs' thought that there is clearly something lacking. In effect they say 'Such as what? Such as those located in Cedar County, or some other place? or such as those devoted to a certain kind of charity, or religion, or educational purpose?' At the very least, they contend, there should be evidence taken as to what was meant by this language; although they do not admit the defect could be cured by evidence.

We are not impressed by these contentions. It requires a strained interpretation of the language and the whole language of the will to arrive at any other conclusion than that the testator meant to designate such organizations and institutions as are operated solely for religious, charitable and educational purposes, and might be selected by his trustees as the beneficiaries of the trust. It is only necessary to take the meaning of Thirteenth from its four corners to arrive at this construction. We have said that to ascertain the meaning of the testator it is sometimes proper to discard or transpose words in a will, or, more in point here, to supply them. Layton v. Tucker, 237 Iowa 623, 626, 23 N.W.2d 297, 298, and citations. So, if a testamentary provision is susceptible of two constructions, one of which would make it void and the other would render it valid, the court must choose the latter. Layton v. Tucker, supra, loc. cit. 237 Iowa 626, 23 N.W.2d 298. Whether it is necessary to resort to these last cited authorities to make the testator's meaning clear in the case before us may well be doubted; but they furnish a proper method of interpretation if one is needed. We find no merit in plaintiffs' contention at this point.

II. Nor do we think the designation of the trust beneficiaries is so vague and indefinite that the trust must fail. Perhaps the exact point at issue here has not been decided in Iowa; but it has been closely approached in several cases. The question may be stated thus: Is a general bequest to charity, that is to say, for charitable purposes, with the power lodged in named trustees to select the beneficiaries, so indefinite and uncertain that it must be held to be void? The plaintiffs urge strongly that we have never gone so far as to approve such a trust.

Here the shadow of our many previous pronouncements hangs darkly over the plaintiffs. If we have never said that such a trust is valid as applied to the facts of the several cases which have come before us, there are certainly many near misses. Iowa is among those jurisdictions which go to considerable lengths in upholding charitable trusts. As recently as in Eckles v. Lounsberry, Iowa, 111 N.W.2d 638, 641, we said: 'Charitable gifts are strongly favored by the courts and will be upheld wherever possible. (Citing authorities).

'In considering a charitable bequest we have approved this statement of Lord Hardwicke, 'There is no authority to construe it to be void, if by law it can possibly be made good.' (Citations.)'

So in In re Estate of Small, 244 Iowa 1209, 1225, 58 N.W.2d 477, 485, we used this language: 'It is a well recognized rule, uniformally followed by all courts, that gifts to charitable uses and purposes are highly favored in law, and will be most liberally construed to make effectual the intended purpose of the donor. This court has always been zealous in protection the rights of beneficiaries of charitable trusts.'

More specifically, we have many times used language which fits...