Estate of Gisler, In re

• Decision Date: 10 July 1951
• Docket Number: No. 47851,47851
• Citation: 48 N.W.2d 866,242 Iowa 933
• Parties: In re GISLER'S ESTATE. GREEN v. GISLER.
• Court: Iowa Supreme Court

Page 866

48 N.W.2d 866

242 Iowa 933

In re GISLER'S ESTATE GREEN v. GISLER.

No. 47851.

Supreme Court of Iowa.

July 10, 1951.

Kean & Hefferman, Dubuque, for appellant.

Rees & Remley, Anamosa, for appellee.

GARFIELD, Justice.

Frank Gisler died October 16, 1949. His will dated five days earlier provides in part: 'Third, I give my farm known as the home farm to my brother Henry Gisler, and also all of my share of the personal property on said farm. * * *

'Fourth, I give my farm known as the Gavin farm to my sister, Mary Green, and also give her all my share in the personal property located on said farm.'

Mary Green as executrix of the probated will and individually brought this action against her brother Henry Gisler for construction of the will to determine what land was included in each of these two devises. Henry also asked for construction of the will in this respect.

Testator left 560 acres of land shown by the accompanying plat. It is conceded the E 1/2 of the NE 1/4 and the NE 1/4 of the SE 1/4 of section 8, shown on the plat in woven crosshatch, and the W 1/2 of the NW 1/4 and the NW 1/4 of the SW 1/4 of section 9, shown on the plat in vertical crosshatch (240 acres in all), pass to Henry under paragraph Third. It is also conceded the E 1/2 of the NW 1/4, the S 1/2 of the NE 1/4 and the N 1/2 of the SE 1/4, all shown in diagonal crosshatch (also 240 acres), go to Mary under paragraph Fourth.

The controversy is over which devisee should receive the two remaining 40-acre tracts, the SW 1/4 of the SW 1/4 of section 4 (on the north) and the NE 1/4 of the SW 1/4 of section 9 (in the middle of the south row of forties), both shown on the plat in horizontal crosshatch. In the trial court each litigant claimed both these forties. Following trial in equity the north forty in controversy was awarded Henry as part of the 'farm known as the home farm' and the south forty in controversy was awarded Mary as part of the 'farm known as the Gavin farm.' Henry has appealed, claiming the last mentioned forty should also have been awarded him.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The west 120 acres, shown on the plat in woven crosshatch, were owned by testator's parents when his father died in 1911. Testator then took over the management and operation of this tract. He and his mother continued to live there much of the time until the mother's death in 1934. Testator acquired title to the 120 acres under his mother's will and by deeds from the remaining devisees of his mother made in 1935. This tract constitutes the original home farm.

In 1915 testator acquired by deed from the guardian of one Ryan the 120 acres in vertical crosshatch adjoining the original home farm on the east. This tract was then known as the Ryan farm and was frequently so referred to thereafter.

Testator obtained the two forties in controversy (shown in horizontal crosshatch) in 1929 from a bank in Cascade. The bank had acquired them from James Gavin. The south forty was frequently referred to as Dick's forty. It had belonged to Dick Allen about 50 years before the trial. The north forty was frequently called the timber forty. There is also evidence the two forties were spoken of as the James Gavin farm or eighty.

The remaining 240 acres owned by testator at his death (shown in diagonal crosshatch) were deeded to him in 1933 by the receiver of the Cascade bank which had acquired the land by foreclosure against Charles Gavin, the former owner. This tract was frequently referred to as the Charles Gavin farm.

There were never more than two sets of buildings on the 560 acres owned by testator. Each is shown on the plat by the letter 'X'. The buildings on the home farm are a little east of the center of the northeast quarter of section 8. The buildings on the Charles Gavin farm are somewhat east of the center of section 9.

After testator acquired the two forties in controversy in 1929 they were farmed as a unit along with the home 120 acres and the Ryan 120 acres (320 acres in all) at least until 1933, when he obtained the Charles Gavin 240 acres, and perhaps until 1938. Before 1929 the original home farm of 120 acres and the Ryan 120 acres seem to have been operated as a unit.

Other facts will be referred to later.

It is plain there is a latent ambiguity in the will as to what is included in 'my farm known as the home farm' and 'my farm known as the Gavin farm.' The subject of each devise is not described except in the words just quoted. This makes proper, indeed essential, the introduction of extrinsic evidence to identify the land included in each devise. See International Harvester Co. v. Bye, 184 Iowa 1053, 1055, 1056, 169 N.W. 382, 383, where the will devised 'my homestead property'; Annotation 94 A.L.R. 26, 131, 155. See also Odens v. Veen, 234 Iowa 1029, 14 N.W.2d 705; Boehm v. Rohlfs, 224 Iowa 226, 233, 276 N.W. 105.

For the definition of 'latent ambiguity' see In re Estate of Lepley, 235 Iowa 664, 670, 17 N.W.2d 526, 529; Annotation 94 A.L.R. 26, 46; 57 Am.Jur., Wills, section 1042.

Of course the purpose of construing a will is to ascertain the intent of the testator. Layton v. Tucker, 237 Iowa 623, 625, 23 N.W.2d 297, 298, and citations; In re Estate of Syverson, 239 Iowa 800, 804, 32 N.W.2d 799, 801, which involves a will somewhat like that now before us, although there the two farms were more definitely described by stating the acreage in each and were about a mile and a half apart. What land was included in the two farms devised in the Syverson case was not there in issue.

57 Am.Jur., Wills, section 1342, states:

'In determining what passes under a devise of a 'farm' or a 'plantation,' the intention of the testator is, of course, controlling and will be given effect when it can be ascertained. * * *.

'One of the commonest problems arising in connection with devises of the kind in question is whether distinct parcels of land owned by the testator are to be included in the property passing. The cases in general support the conclusion that if such parcels were used by the testator * * * for purposes incidental to the operation of a farm or plantation, or if the testator in his lifetime customarily regarded such parcels as a single unit, they will, in the absence of any contrary intention, be regarded as passing, * * *.'

Although the case is not entirely free from doubt we are not inclined to reverse the trial court's decision that the south forty in controversy should go to plaintiff as part of the devise to her in paragraph Fourth.

Testator doubtless intended to devise all his 560 acres by paragraphs Third and Fourth. No other provision of the will refers to any of his land. The will should therefore be so construed that this south forty is considered part either of the 'farm known as the home farm' under paragraph Third or of the 'farm known as the Gavin farm' under paragraph Fourth.

Of course the forty now in controversy was not originally part of either the home farm or the Charles Gavin farm. If it was part of the farm known as the home farm or the one known as the Gavin farm when the will was made (and testator evidently then considered it part of one or the other) it is because of circumstances which arose after testator acquired it. It is perhaps true he considered this forty part of his home farm from 1929 when he bought it until 1933, when he obtained the Charles Gavin 240 acres, or even until 1938. (However, as stated, testator did not acquire the legal title to the home 120 acres until 1934 and 1935.) Of course it does not necessarily follow that testator did not consider this forty part of what was known as the Gavin farm when he made his will in October, 1949.

One persuasive fact in support of our decision is that since 1945 testator leased the forty now in controversy to the tenant on the ...