Estate of Hamilton, Matter of, 89-1604

• Decision Date: 29 January 1991
• Docket Number: No. 89-1604,89-1604
• Citation: 467 N.W.2d 801
• Parties: In the Matter of the ESTATE OF Gertrude C. HAMILTON, Deceased. Upon the Application of Paul Hamilton and Leo Hamilton, Appellants, And Concerning The Gertrude C. Hamilton Estate, Appellee.
• Court: Iowa Court of Appeals

Page 801

467 N.W.2d 801

In the Matter of the ESTATE OF Gertrude C. HAMILTON, Deceased Upon the Application of Paul Hamilton and Leo Hamilton, Appellants And Concerning The Gertrude C. Hamilton Estate, Appellee.

No. 89-1604.

Court of Appeals of Iowa.

Jan. 29, 1991.

Gregg A. Buchanan, Buchanan, Dotson, Buchanan, Bibler & Buchanan, Algona, for appellants.

Eldon J. Winkel, Algona, for appellee Gertrude C. Hamilton Estate.

Leo J. Cassel, Cassel, McMahon & Courtney, Algona, for appellee Martin Hamilton.

Considered by HAYDEN, P.J., and SACKETT and HABHAB, JJ.

HABHAB, Judge.

Gertrude Hamilton died leaving a will and ten codicils. This dispute centers around the meaning of certain provisions in her will and codicils that affect the disposition of the "Murray Farm" involved in this controversy. We set forth only those parts of the codicils that are necessary to the decision. She denotes the paragraphs in her will and codicils as "Item" and we will do likewise in this opinion.

The decedent, in her 1975 will, for the most part bequeathed the Murray Farm to her nine children in equal shares. She made this bequest along with other property (that included a trust provision and an option to buy land not here involved) under Item IV of her will. In Item VI of her will, the provisions of Item IV were made subject to the right of her executors to sell any real estate owned by her without court approval and to divide the proceeds in accordance with the applicable provision of her will. Her first, second, third, fifth, sixth, and seventh codicils have no bearing on this dispute except that each codicil, including her fourth, eighth, ninth, and tenth, ratified and affirmed her will and all previous codicils.

Her fourth codicil was executed in 1978. Under Item I of that codicil, she amended Item VI of her will (the provision which gave her executors the authority to sell her real estate) by providing:

Said power of sale is hereby limited and it is my express direction that the Murray Farm be not sold but shall remain in my family for fifteen years or for whatever term of years more than fifteen [sic] are necessary to qualify this farm for the alternate method of valuation of farm land under the federal estate tax regulations.

There the matter rested until 1982. In that year Gertrude executed her eighth codicil. As it relates to the problem before us, that codicil provided:

I wish to state for the record that my primary lifetime goal has been to keep our farm land in the family and all of my decisions have been directed to that goal.

On July 8, 1983, Gertrude executed her ninth codicil. That codicil added to Item I of her fourth codicil (the article that limited the executors' right to sell) a provision at Item I that the Murray Farm be rented to one or more of the children of her son, Luke, for fifteen years or for whatever term of years, more or less than fifteen, as is necessary to qualify the farm for the alternate method valuation. There is an additional provision that provides for cash rent lease for 75% of the average cash rent leases in Greenwood Township as determined by the Kossuth County Extension Office, if a cash rent lease under these circumstances still allows this farm to qualify for the special use valuation of farm land under the Federal estate tax regulations. The 75% provision is to be used as a fair percentage for the first two years of the lease and commencing with the third year is to be increased to 80%. If this method of computing cash rent prevents qualification for special use valuation, the usual crop share lease is to be used. Her ninth codicil also "added" the following:

ITEM II

I hereby give a first option to my grandsons, Paul and Leo Hamilton, or any of Luke's other boys who are financially able to buy the Murray Farm at a suggested price to be determined by my co-executors as follows:

80% of the market value as determined by my co-executors from the average of the prior two years sales of farms in Greenwood Township as recorded by the Kossuth County Extension Service or the Kossuth County Recorder Office. This option period shall be exercised within nine months of my death.

We note here, as it relates to the option to purchase under her ninth codicil, that the decedent provided that the options must be exercised within nine months of her death. In her tenth and final codicil, executed in September 1983, Gertrude deleted the nine-month period from her ninth codicil and in lieu thereof provided that the option must be exercised within fifteen years of her death. She died on March 6, 1984.

In March 1988, the applicants, Paul and Leo Hamilton (the testator's grandsons) in accordance with Item II of decedent's ninth codicil, mailed a notice of exercise of option concerning the farm to Gertrude's heirs. The applicants suggested a price based on Gertrude's formula. The notice further provided that Paul and Leo would extend to their brothers an opportunity to purchase an interest in the farm.

In July 1988, Paul and Leo filed an application to reopen the estate for purposes of addressing the issues regarding the option on the farm. Following a hearing, the district court entered its order finding the will and codicils ambiguous and inconsistent. It construed the disputed provisions to mean, inter alia, that the option could only be exercised between ten and fifteen years after the date Gertrude died. Paul and Leo have filed this appeal.

Our review is de novo. In a de novo review we make findings of fact anew; however, when considering the credibility of witnesses, we give weight to the fact findings of the trial court, but are not bound by them. In re Estate of Crist, 434 N.W.2d 904, 905 (Iowa App.1988); In re Estate of Nagl, 408 N.W.2d 768, 771 (Iowa App.1987).

I.

It is not the function of the Court to make, remake, improve or otherwise modify the clear provisions of the will of a competent testator. Matter of Estate of Eickholt, 365 N.W.2d 44, 46 (Iowa App.1985). The court is authorized to construe the true intent of a will if ambiguities exist. Elkader Prod. Credit Ass'n v. Eulberg, 251 N.W.2d 234, 237 (Iowa 1977). However, it is elementary that in construing a will, the polestar is the testator's intent which, if expressed, controls. Matter of Estate of Eickholt, 365 N.W.2d 44, 46 (Iowa App.1985). So while the court may construe the intent of the testator if ambiguities exist, the court must also keep in mind what the testator wanted and not rewrite the will according to what the courts believe is correct.

It is alleged that an ambiguity exists between Item I of the decedent's fourth codicil which provided "that the Murray farm be not sold but shall remain in my family for fifteen years" and the provisions of her ninth and tenth codicil which specifically gave her designated grandsons (or any of Luke's other boys who are financially able) the first option to buy the Murray farm within fifteen years of her death.

Faced with this problem, the trial court concluded that the option to purchase was premature and that the land could not be sold until a time period of ten years had passed. It is here that we disagree with the trial court. In doing so, we find the decedent's ninth and tenth codicils govern and thus reverse.

It is axiomatic that a will and its codicil are to be read and construed together as one instrument executed on the date of the last codicil. In re Barnes Estate, 256 Iowa 1043, 128 N.W.2d 188, 191 (1964).

The codicil is welded into the will and becomes an integral part of it and in determining the intent of the testator, the will and the codicil are to be read together as one instrument; and unless there is an irreconcilable conflict or discrepancy between them, the codicil is no more the last expression of the testator's intent than if it had been written as part of the will. If there is such a conflict the codicil will govern.... The codicil supplants the will only to the extent of those provisions of the will that are inconsistent with it.

McCullough's Estate v. Conrad, 243 Iowa 449, 458-459, 52 N.W.2d 67, 73 (1952). "The purpose of a codicil is ordinarily to effect some change in the will as drawn. When lawfully executed it becomes a part of the original will, and the two instruments stand as one testamentary disposition." Id.

At the time the testator wrote and properly executed the fourth codicil it became a part of her will. The same is true of her ninth and tenth codicils. Thus, the will and codicils are to be read together as one instrument. When we do so, after paraphrasing, so much of the will and codicils as is necessary for a better understanding of this dispute the following instrument results: The decedent bequeathed her real estate to her children. The executors were authorized to sell any of her real estate except the Murray farm, and it was to remain in her family for fifteen years or for whatever term of years more than fifteen as is necessary to qualify the Murray farm for the alternate method of valuation. Her primary goal was to keep the farmland in the family. In her Ninth Codicil she...