Estate of Boldt, Matter of, 83-106

• Decision Date: 21 December 1983
• Docket Number: No. 83-106,83-106
• Citation: 342 N.W.2d 463
• Court: Iowa Supreme Court
• Parties: In the Matter of the ESTATE OF Mary K. BOLDT, Deceased.

Page 463

342 N.W.2d 463

In the Matter of the ESTATE OF Mary K. BOLDT, Deceased.

No. 83-106.

Supreme Court of Iowa.

Dec. 21, 1983.

Kevin P. Shea and Jane Spande, Cedar Rapids, for appellant devisee.

Gerard J. Glaza, Cedar Rapids, for appellee executor.

UHLENHOPP, Justice.

This appeal involves the construction of a will with reference to the disposition of joint tenancy property. Our review is de novo. Oxley v. Oxley, 262 N.W.2d 144, 147 (Iowa 1978).

The following appears from the documents and testimony in evidence. Mary K. Boldt, testatrix, owned accounts in financial institutions as well as real estate and tangible personal property. She was survived by two daughters, Jeanne and Friederike. At the time of her death, most of her accounts were in joint tenancy with Friederike; testatrix had provided the money in the accounts.

Testatrix had made prior wills, all drawn by the same scrivener, in which she had divided her property between the daughters with substantial equality; she generally confirmed joint tenancies with Friederike or Jeanne and equalized them with gifts of property.

On October 10, 1980, testatrix made her last will. The will first directed the payment of debts and then contained the following paragraph II:

I give, devise and bequeath all of the rest and residue of my property, whether such property be real, personal or mixed, and whatsoever kind and character and wheresoever situated, to my two children, Jeanne M. Vogel and Friederike Boldt, the survivor or survivors thereof. I hereby revoke any joint tenancies that I might have created in the past with either of the beneficiaries as they made no contribution to the joint tenancies and the joint tenancies were created as a convenience for myself. It is my will that my personal belongings be divided equally, but in value only, and that matching sets or items not be broken up, but evaluated and go as a unit to one or the other beneficiary. The beneficiaries know the various items that I desire each to have, and I expect them to honor my wishes.

Finally, the will appointed a bank as executor.

Paragraph II of the will and the testimony of the scrivener, introduced in evidence without objection, leave no doubt that testatrix desired the daughters to receive equal shares of all the property. The scrivener testified that "she wanted the two daughters to share equally." He also testified without objection:

Q. Did you get the impression that when you talked with Mary [testatrix] regarding this final will, she wanted the daughters to share equally? A. That is what she informed me at the time.

The clause in paragraph II of the will purporting to revoke the joint tenancies was of no legal effect by virtue of the rule in Conlee v. Conlee, 222 Iowa 561, 269 N.W. 259 (1936). In that case Reuben C. Conlee placed property in joint tenancy with Robert E. Conlee. Reuben's will left all his property to his heirs. This court held that on Reuben's death the joint tenancy property belonged entirely to Robert, not to the heirs, because Reuben's interest in the joint tenancy property ceased with his death and did not pass under his will.

Testatrix in the present case died on December 9, 1981. The joint tenancy accounts with Friederike amounted to $44,378.94. Testatrix owned other property worth $123,706.32. If Friederike took the joint tenancy accounts plus half of $123,706.32, she would receive $106,232.10, while Jeanne would receive half of $123,706.32 or $61,853.16.

The executor named in the will refused to accept appointment. The probate court thereupon appointed Friederike as executor. The scrivener of the will represented her as such.

Aware of testatrix' desire to divide the property equally, the scrivener met with the two daughters, explained that intention to them, and endeavored to obtain a family settlement between them. Nothing came of his efforts. Eventually Friederike asserted a right to the joint tenancy accounts and to half of the other property. The scrivener thereupon prepared the inheritance tax returns and proposed distribution with Friederike receiving the joint tenancy accounts and the two daughters receiving the nonjoint property equally.

Jeanne objected in the probate proceeding to that distribution of the assets. She contended that the daughters should share equally. This would mean each daughter would receive assets worth approximately $84,042.63.

The probate court construed the will. At trial in probate, the scrivener gave testimony by deposition. He testified that he told testatrix when she made her will she could not revoke the joint tenancies by will and she would have to revoke them at the financial institutions, but that she never did so. He also testified, "As a matter of fact, that's one of the rare times that Mary never followed through on anything. As a matter of fact, I don't know of any other time she didn't follow through on something." As to the prior wills in which testatrix purported to "confirm" the joint tenancies, the scrivener testified:

Q. You said in the other wills she confirmed the joint tenancies. Was language to that effect placed in the wills? A. Yes.

Q. And again did you advise her? A. I said it's superfluous. "I don't care, I want it in."

Testatrix being dead, we do not have her version of these conversations. She speaks only through the will.

The probate court, citing Conlee, held that the joint tenancies could not be severed by will, and that Friederike took the joint tenancy accounts and the two daughters took the rest of the property in equal shares. Jeanne appealed.

I. The will gave testatrix' property to her two children and attempted to revoke the joint tenancies. The surviving joint tenant claimed the joint tenancy property and half of the rest of the property. The other daughter claims that the will shows testatrix intended the two daughters are to share equally in everything.

We have no doubt that testatrix actually intended the two daughters are to share everything equally. Testatrix attempted to accomplish that result by stating, "I hereby revoke any joint tenancies that I might have created ..."--something that she could not do by will. She could have achieved her objective by stating something along this line: "In order to accomplish an equal division of all property, the full value of real and personal properties in which I am a joint tenant shall be considered as though they were part of my estate, and the full values of the respective joint tenancy properties shall then be deducted from the shares of the respective joint tenants in making distribution."

The problem is that testatrix did not so state in her will. We thus encounter the principle that wills cannot be rewritten or reformed by courts, under the guise of construction, in order to reach a desired result. In re Estate of Giffin, 166 N.W.2d 800, 801 (Iowa 1969) ("Courts have the power to interpret and construe a will but may not rewrite it or change its terms by construction."); Martin v. Beatty, 253 Iowa 1237, 1243, 115 N.W.2d 706, 710 (1962) ("Obviously the court may not make a will for the testator, nor impose upon the will a forced or unnatural construction to accomplish what may now seem to be a more just or appropriate distribution of the estate."); In re Syverson's Estate, 239 Iowa 800, 809, 32 N.W.2d 799, 803 (1948) ("It is not the province of a court to make, remake, or try to improve the will of such a testator."); In re Heckmann's Estate, 228 Iowa 967, 975, 291 N.W. 465, 469 (1940) ("The court cannot make a new will."); Gilmore v. Jenkins, 129 Iowa 686, 692, 106 N.W. 193, 195 (1906) ("a court cannot correct a mistake in a will, or make a new will for the parties").

II. The case, however, presents a classic illustration of a required election under a will. While testatrix had no legal power to revoke the joint tenancies by will, she purported to do so. Confronted with the will, Friederike had two alternatives: she could accept the will as written, let the joint tenancy property become part of the estate for computing distribution, and take half of all the property, as she was urged to do, or she could refuse to accept the attempted revocation of the joint tenancies. But she could not accept the part of paragraph II of the will giving her half of the assets and reject the part of that paragraph revoking the joint tenancies. Those two parts were woven together in the paragraph; testatrix in effect offered Friederike alternatives.

No necessity exists to decide whether testatrix knew or did not know that she could not legally revoke the joint tenancies by will. If she knew, she deliberately required Friederike to elect. If she did not know, in paragraph II she nonetheless put Friederike to a choice.

The doctrine of election in the law of wills is described in the following from 97 C.J.S. Wills § 1237 (1957):

The doctrine of election, as applies to wills, is the obligation imposed on a person to choose between two inconsistent or alternative rights or claims in instances where it was clearly the intention of the testator that he should not enjoy...