Estate of Kiel, In re, No. 83-571

• Court: United States State Supreme Court of Iowa
• Writing for the Court: HARRIS
• Citation: 357 N.W.2d 628
• Parties: In re ESTATE OF Blanche M. KIEL, Deceased. Hubert A. KIEL, Individually and as Executor of the Estate of Blanche M. Kiel, Deceased, Appellee, v. Lois SCHUCHMANN, Individually and as Executor of the Estate of Blanche M. Kiel, Deceased, Appellant.
• Decision Date: 14 November 1984
• Docket Number: No. 83-571

Page 628

357 N.W.2d 628 In re ESTATE OF Blanche M. KIEL, Deceased.
Hubert A. KIEL, Individually and as Executor of the Estate of Blanche M. Kiel, Deceased, Appellee,
v.
Lois SCHUCHMANN, Individually and as Executor of the Estate of Blanche M. Kiel, Deceased, Appellant. No. 83-571. Supreme Court of Iowa. Nov. 14, 1984.

Page 629

J.D. Villont of Donohue Law Office, P.C. West Union, for appellant.

Alice T. Koempel of Traeger & Koempel, West Union, for appellee.

Page 630

Considered by UHLENHOPP, P.J., and HARRIS, McGIVERIN, CARTER, and WOLLE, JJ.

HARRIS, Justice.

The question is whether a bequest of "the first $24,000 of my estate" was satisfied by certificates of deposit held in joint tenancy by decedent and a devisee. The trial court held it was. We disagree.

Plaintiff Hubert and defendant Lois are brother and sister. Except for a $24,000 bequest to Lois, they share equally under the will of their mother, Blanche. Because of $24,000 previously given to Hubert, Blanche's will provided:

It is my will that my daughter, Lois Schuchmann, shall receive the first $24,000 of my estate and the balance, if any, shall be divided equally between my children, Hubert A. Kiel, and Lois Schuchmann, the same to be their absolute property ....

A number of certificates of deposit were found in Blanche's bank box after her death. Included were a total of $26,250 which were held in joint tenancy by Blanche and Lois. Another $7,750 were held in joint tenancy by Blanche and Hubert. All the certificates were purchased by Blanche. Lois testified she knew nothing of the certificates prior to her mother's death.

In a petition to construe the will, Hubert asserted that the phrase "the first $24,000 of my estate" is ambiguous. He argued it refers to assets, some of which are subject to probate, and some of which (i.e., the certificates of deposit) are not. According to Hubert it was Blanche's intention that all jointly held property was to be taken into account in computing "the first $24,000" which Lois was to receive under the will.

The trial court agreed, finding the will ambiguous, not as a result of any specific provision in it, but because

it appears to this court ... that the attempt of the decedent as shown by the record was to divide her entire estate evenly between her two children ....

The court went on to hold that the "estate" consisted of all property owned by Blanche, including the joint tenancy certificates of deposit. The ruling effected an equal division between Hubert and Lois of all Blanche's assets, both probate and non-probate.

On Lois' appeal, the matter was transferred to the court of appeals which, with two judges dissenting, reversed the trial court. We granted further review.

I. Our review is de novo. Matter of Estate of Kruse, 250 N.W.2d 432, 433 (Iowa 1977). 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. Russell v. Johnson, 327 N.W.2d 226, 228 (Iowa 1982). See Iowa R.App.P. 14(f)(7).

II. Hubert's case rests on his assertion that the will is ambiguous. Our first duty, then, is to determine if an ambiguity exists because only when it does is a testator's subjective intent a proper subject of inquiry. In re Estate of Thompson, 164 N.W.2d 141, 146 (Iowa 1969).

We have said "where the terms of a will are plain and unambiguous, a construction ... by the court is unnecessary." Anderson v. Anderson, 227 Iowa 25, 32, 286 N.W. 446, 449 (1938). Resort to extrinsic circumstances is not then allowed. Id. Hence, where there is no patent ambiguity, a will must be construed as written unless some latent or hidden ambiguity appears. In re Estate of Lepley, 235 Iowa 664, 670, 17 N.W.2d 526, 529 (1945).

Inappropriate suggestions are often made under the guise of a claimed ambiguity. We have disapproved or rejected a number of them. For example, a court may not, under the guise of ambiguity, add to the provisions of a will. In re

Page 631

Estate of Winslow, 259 Iowa 1316, 1323, 147 N.W.2d 814, 818 (1967). A court may not, under the guise of ambiguity, make or remake the will of a testator. In re Estate of Zang, 255 Iowa 736, 738, 123 N.W.2d 883, 884 (1963). A court may not, under the guise of ambiguity, inquire into the wisdom of the testator's distribution. Eckles v. Lounsberry, 253 Iowa 172, 185, 111 N.W.2d 638, 646 (1961). Finally, a court may not, under the guise of ambiguity, implement broad...