Estate of Miller, In re

• Decision Date: 28 July 1952
• Docket Number: No. 48106,48106
• Citation: 243 Iowa 920,54 N.W.2d 433,36 A.L.R.2d 139
• Parties: , 36 A.L.R.2d 139 In re MILLER'S ESTATE.
• Court: Iowa Supreme Court

Page 433

54 N.W.2d 433

243 Iowa 920, 36 A.L.R.2d 139

In re MILLER'S ESTATE.

No. 48106.

Supreme Court of Iowa.

July 28, 1952.

Simpson & Louden, of Fairfield, for appellant.

Richard C. Leggett, of Fairfield, for Glen A. Sherman, Administrator, C.T.A., and Edward Miller, Appellees.

Eugene McCoid, of Mt. Pleasant, Leo D. Thoma, of Fairfield, for Wilma Cassabaum, Guardian of Theodore Cassabaum, incompetent, appellee.

OLIVER, Justice.

Testator's will, executed in November, 1950, provides:

'First: I give, devise and bequeath unto my wife, Margaret Miller, if she is my wife at the date of my decease, such portion of my property as she is allowed by the laws of the State of Iowa, and no more.'

The will provides in substance, also:

Second: In the event any person or persons shall establish himself or herself as testator's child, legitimate or illegitimate, to such person or persons the sum of $1 each and no more, to be the full share of such child or children in all of testator's property.

Third: The rest and remainder to Theodore Cassabaum, trustee, to use so much of the principal and interest as is necessary for the care and support of testator's father; upon death of the father, the remainder to Theodore Cassabaum, absolutely.

Fourth: Nominates Theodore Cassabaum, executor.

Testator died early in 1951. The parties agree hd died without living issue.

Chapter 636, Code of Iowa 1950, I.C.A. is entitled 'Descent and Distribution of Intestate's Property.' Code section 636.32 provides in part:

'If the intestate leaves no issue, the whole of the estate to the amount of fifteen thousand dollars, * * * and one-half of all of the estate in excess of said fifteen thousand dollars shall go to the surviving spouse * * *.'

Code section 636.5, entitled 'Dower' provides one third in value of the husband's real estate shall go to the surviving wife. Section 636.7 refers to this one third as the distributive share of the survivor. Section 636.1 provides the personal property shall be distributed to the same persons and in the same proportion as the real estate. Section 636.21 provides the survivor's (one third) share cannot be affected by any will of the spouse unless consent thereto is given.

The widow contends the will gives her the same share as though testator had died intestate and that she is entitled to take under section 636.32, which would give her the first $15,000 and one-half the excess. The resistors are the administrator with will annexed, testator's father and the guardian of Theodore Cassabaum, incompetent. They assert the will limits the widow to her dower or distributive share of one third of the estate. The cause was tried in equity. The trial court adjudged the will limited the widow's rights to the one third. She has appealed.

I. The purpose of construing a will is to ascertain the intent of the testator. Such intent is to be gathered from the will as a whole, reading each provision in the light of every other provision and giving effect to each, if possible. In re Estate of Coleman, 242 Iowa 1096, 49 N.W.2d 517, and citations.

In the case at bar the paragraphs of the will numbered second, third and fourth appear to have little bearing upon each other or upon the first paragraph, which is here directly in question. Although the second paragraph, which provides nominal bequests to persons establishing themselves as testator's legitimate or illegitimate children, may tend to indicate some care in the preparation of the will, it has no substantial effect on other provisions. With reference to the third paragraph, it is not contended the construction of the will sought by the widow could result in her securing all or substantially all of the estate and thus, in effect, nullifying the provisions for others. (The preliminary inheritance tax report shows a net estate of about $52,000). The fourth paragraph merely nominates an executor. Hence, detailed consideration of paragraphs second, third and fourth is not required.

II. The law favors that construction of a will which most nearly conforms to the statutory rule of descent and distribution. Marvick v. Donhowe, 191 Iowa 214, 182 N.W. 182; In re Estate of Gisler, 242 Iowa 933, 48 N.W.2d 866, 870; In re Estate of Finch, 239 Iowa 1069, 1088, 32 N.W.2d 819, 3 A.L.R.2d 1403; Fletcher v. Fletcher, 200 Iowa 135, 137, 204 N.W. 410; 69 C.J. 284, Wills, section 1306.

III. Tennant v. Smith, 173 Iowa 264, 155 N.W. 267, involved a will which left the husband 'such share of my estate as he is entitled to have and receive under the laws of the state of Iowa.' He predeceased testatrix. The court held his heirs were not entitled to the devise under the antilapse statute because testatrix' will gave him exactly what the law would have given him and he would have taken under the law, had he survived testatrix.

In Marvick v. Donhowe, 191 Iowa 214, 182 N.W. 182, 183, the will gave the wife 'that part of my estate which the laws of Iowa provide for a wife's equity.' The court cited with approval Murdoch v. Bilderback, 125 Mich. 45, 83 N.W. 1007, in which the language devising her 'all the statute of the state of Michigan allows a widow' was held to be comprehensive and to give her the one half allowed by statute instead of her dower right of one third. In the Marvick case this court stated:

'The law favors such a construction of a will that most nearly conforms to the statutory rule of descent and distribution. Applying this presumption in the instant case, if there is any doubt or uncertainty as to what portion of the testator's estate he intended to give his wife, we must resolve that doubt in her favor, and give her all to which she would have been entitled had the husband died intestate.'

Resistors cite In re Estate of Fay, infra; In re Estate of Finch, supra, and In re Estate of Coleman, supra. In re Estate of Fay, 196 Iowa 1099, 1102, 196 N.W. 42, 43 involved a bequest to a wife of one dollar '* * * subject to her rights and dower interest allowed [her] by statute'. The court stated the quoted language merely recognized, in substantially the terms of the statute (now section 633.1), that the wife's statutory dower interest was beyond testator's control, and that the language did not have the effect of devising this statutory share to her.

In re Estate of Finch, supra, 239 Iowa 1069, 1073, 1089, 1092, 32 N.W.2d 819, 821 828, 830, 3 A.L.R.2d 1403, involved a devise to the husband of 'his distributive share of my property as provided by the laws of Iowa'. The court held the term distributive share referred to the one third share passing to the surviving spouse under Code section 636.5. The decision quotes at length from Marvick v. Donhowe, supra, and states with reference thereto: 'The phraseology of the devise was that of a layman and not in the language of the statute, yet his intention was clear. The judgment of the court was a logical and reasonable determination of that intent.'

In re Estate of Coleman, supra, 242 Iowa 1096, 49 N.W.2d 517, 518, involved a will which provided: 'I want my wife Cecil to have all her legal rights as to my property, which is 1/3 of my estate.' That decision turned upon the language of the will defining her legal rights as one third of testator's estate. Hence, Marvick v. Donhowe, supra, was held inapplicable.

The text in 69 C.J. 283, Wills, section 1306, states:

'* * * it is generally held that, where the will gives to the widow 'her lawful part', 'what the law allows her', or words of like purport, she is entitled thereunder to such part of testator's estate as she would have received if he had died intestate; * * *.'

In support of this statement, Marvick v. Donhowe, supra, 191 Iowa 214, 182 N.W. 182, and cases from various other jurisdictions are cited. Reference will now be made to some of these cases and other decisions.

The will in Talbott's Ex'r v. Goetz, 286 Ky. 504, 151 S.W.2d 369, 370, 371, stated testator's wife had been living away from him and 'If I leave her surviving me and undivorced, she shall have and take what the Statutes of Kentucky give to her and no more, * * *.' The decision states: 'Since the will provides that the appellee shall take what the Statutes of Kentucky give to her and no more, her share of the estate must be determined by the laws of descent and distribution of the Commonwealth in the same manner as if the testator had died intestate.' It quotes from Page on Wills, Vol. 2, section 937, page 1574:

'A gift to a surviving spouse of his 'lawful portion' or of 'whatever the law allows him,' or any similar form of gift, passes such interest as the surviving spouse would have taken if there had been no will.'

In Springfield Safe Deposit & Trust Co. v. Rogers, 242 Mass. 550, 136 N.E. 612, the will gave the widow: '* * * such portion of my estate as she is entitled to under the laws of the commonwealth of Massachusetts.' Under the statutes then in effect this widow was entitled to more if her husband died intestate than if he died testate and she waived the provisions of his will. Holding the widow was entitled to the share she would have received if her husband had died intestate, the court stated: 'He (testator) does not say, 'To my wife I devise, bequeath and give whatever she would receive if she waived the provisions of my will'.'

In Kelly v. Reynolds, 39 Mich. 464, 33 Am.Rep. 418, the will provided: 'To my wife the provision made for her by the statutes of this State I deem sufficient.' The court stated: 'If this were the only clause in the will, the widow would unquestionably take as in case of intestacy. The clear purpose would then be held to be that the widow should take the provision the statutes give her: the same provision; no more, but also no less. * * * the construction most favorable to the widow should be preferred.'

Weller v. Searcy, 343 Mo. 768, 123 S.W.2d 73, 75, 78, holds a will which devised to the wife 'all that part of my estate to which she may be entitled under...