Estate of Gerdes, In re, 48380

• Decision Date: 09 February 1954
• Docket Number: No. 48380,48380
• Citation: 62 N.W.2d 777,245 Iowa 778,70 A.L.R.2d 210
• Parties: , 70 A.L.R.2d 210 In re GERDES' ESTATE.
• Court: Iowa Supreme Court

Page 777

62 N.W.2d 777

245 Iowa 778, 70 A.L.R.2d 210

In re GERDES' ESTATE.

No. 48380.

Supreme Court of Iowa.

Feb. 9, 1954.

Rehearing Denied April 9, 1954.

R. L. Hudson, F. E. Van Alstine, Pocahontas, and Kindig & Beebe, Sioux City, for appellant-intervenors.

McManus & O'Connor, Manson, for appellant-proponents.

A. J. Braginton, Manson, Rider & Bastian, Fort Dodge, and Stanley E. Felt, Billings, Mont., for appellees.

OLIVER, Justice.

Henry H. Gerdes and Etta A. Gerdes, husband and wife, had lived together for many years. They had no children. Etta Gerdes died June 29, 1950. Henry Gerdes died September 20, 1951. His estate was valued at approximately $424,000. His purported will, executed May 24, 1950, was offered for probate by G. L. Scoles and O. T. Hinrich, the nominated executors. Objections to its probate were filed by certain heirs on the grounds of undue influence and mental incapacity. Thereafter persons claiming to be all of decedent's heirs at law and all of the persons who would share in his estate under the purported will, filed resistance to its probate, stating they had made and signed a family settlement agreement to administer his estate as an intestate estate, and praying it be so disposed of and the will be not admitted to probate. (These persons are referred to as the signatories.)

The proponents of the will assailed the validity of the family settlement. Trial of this issue resulted in judgment, July 24, 1952, sustaining the validity of the family settlement and ordering that the will be not admitted to probate. However, intervenors were not parties to that proceeding and the court specifically excluded from the adjudication, the rights of persons claiming property willed to predeceased wife in Item Two of the will. July 30, 1952, proponents appealed to this court from that judgment. That appeal was dismissed, February 10, 1953, for failure to comply with the Rules of Civil Procedure. In re Estate of Gerdes, 244 Iowa ----, 56 N.W.2d 897.

November 21, 1952, some heirs of decedent's predeceased wife, Etta A. Gerdes, filed in the estate of Henry H. Gerdes, in District Court, the petition of intervention here involved, claiming, for themselves and others in their class, an interest in his estate under his will, and praying that the family settlement agreement be held invalid, the will contest be tried to a jury, and upon its admission the will be construed and the rights of intervenors established. Intervenors claim property willed Etta in Item Two of Henry's will. This claim is predicated upon section 633.16, Code of Iowa 1950, I.C.A., which provides:

'Heirs of devisee. If a devisee die before the testator, his heirs shall inherit the property devised to him, unless from the terms of the will a contrary intent is manifest.'

The answer of the signatories, among other things, denies intervenors would be entitled to take by way of substitution, under Code section 633.2, I.C.A., anything willed Etta Gerdes. If intervenors had no interest in the estate, the failure to include them in the family settlement agreement did not invalidate it and they were mere interlopers in the estate proceedings. Under order of court this issue was tried first. Upon trial the court adjudged intervenors had no interest in the estate of Henry Gerdes and that the petition of intervention be dismissed. Hence, this appeal by intervenors, and proponents of the will.

I. The purported will of Henry H. Gerdes starts with the recitation, in customary language, that it is such will. Following this are four paragraphs or items. Item One directs the payment of debts and expenses.

'Item Two. I give, devise and bequeath to my beloved wife, Etta (Ettie) A. Gerdes, if she shall survive me, my residence property in Manson, Iowa, to be and become her absolute property. Also one hundred seventy-two acre farm in Humboldt County, Iowa, more particularly described as the North West Fractional Quarter of Section 31, Township 91 North, Range 30, West of the 5th P. M. And an undivided one-half of any real estate that I may or have acquired since April 25, 1938. In addition to the foregoing I give and bequeath to my said wife all of the household goods of which I may die possessed, said household goods not to be taken into consideration in the division of personal property. Also an undivided one-half of all of my personal property. This provision for my said wife is made in lieu of her dower and distributive share.

'Item Three. All the rest, residue and remainder of my estate I leave in trust to my Executors, G. L. Scoles and O. T. Hinrichs, for the following purposes to-wit: My said Executors and Trustees shall as soon as they can after my death, without undue sacrifice in their judgment, dispose of all of the balance of my estate and after the expense of doing so have been discharged, divided the same in three equal shares, one of which shares shall pass to the daughter of my sister, Magdalene Oltmans, if said daughter be still living. In the event that she shall not survive me, then the said share shall be divided share and share alike between her children that shall be living at the time of my decease.

'One of said shares shall pass to each of the five children of my deceased sister, Mary Mammen, but if any of said children of my said sister, Mary Mammen, shall not survive me, then the share that would have passed to said child shall pass share and share alike to his or her children who shall survive me.

'One of said shares shall pass to each of the four children of my deceased brother, Otto H. Gerdes, but if any of said children of my said brother shall not survive me, then the share that would have passed to said child shall pass share and share alike to his or her children who shall survive me.'

Item Four nominates the executors, provides they shall have three years to reduce his estate to cash, etc.

Etta having predeceased testator, the ultimate question is whether the devises and bequests to her in Item Two of the will, lapsed. The anti-lapse statute, Code section 633.16, I.C.A., prevents such lapse, 'unless from the terms of the will a contrary intent is manifest.'

There are five so-called sentences in Item Two of the will. The first three of these dispose of real estate. The last two concern personal property. We use the term sentence to refer to each of these five groups of words because each is followed by a period and the first word in each is capitalized. The parties agree the phrase in the first sentence in Item Two, 'if she shall survive me', manifests an intent that the devise of the homestead, therein made, would lapse if she died before testator and that this gift of the homestead did lapse.

Following the first sentence is a period and the so-called second sentence: 'Also one hundred seventy-two acre farm' (describing it). Following this is a period and the so-called third sentence: 'And an undivided half of any real estate * * * acquired since April 25, 1938.' It is clear the soc-called second and third sentences are not in fact sentences. Intervenors argue they lack only verbs and that these may be supplied. However, each lacks also a subject and an object. Without the aid of the first sentence, each is meaningless.

These ambiguities were not caused by the omission of subjects and verbs and objects. They are due to errors in punctuation. They may properly and easily be clarified, without changing or adding any...