Estate of Nagl, Matter of, 86-739

• Court: Court of Appeals of Iowa
• Writing for the Court: Heard by OXBERGER; HAYDEN; All Judges concur except SACKETT; SACKETT
• Citation: 408 N.W.2d 768
• Parties: In the Matter of the ESTATE OF F.M. NAGL, Deceased. In the Matter of the ESTATE OF Florence R. NAGL, Deceased. Appeal of Elma SCHNEIDER and Philip Kennebeck.
• Docket Number: No. 86-739,86-739
• Decision Date: 22 April 1987

Page 768

408 N.W.2d 768 In the Matter of the ESTATE OF F.M. NAGL, Deceased.
In the Matter of the ESTATE OF Florence R. NAGL, Deceased.
Appeal of Elma SCHNEIDER and Philip Kennebeck. No. 86-739. Court of Appeals of Iowa. April 22, 1987.

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Ronald H. Schechtman of Carroll, for appellant Elma Schneider.

C. Joseph Coleman, Jr., of Mitchell, Coleman, Perkins & Enke, Fort Dodge, for appellant Philip Kennebeck.

Richard J. Meyer of Fillenworth & Fillenworth, Estherville, for appellee Anita Meyer.

James Furey of Carroll, for appellee Douglas Rohe.

Heard by OXBERGER, C.J., and SCHLEGEL, and HAYDEN, JJ., but considered en banc.

HAYDEN, Judge.

The executors of the F.M. Nagl Estate and the Florence Nagl Estate filed applications to have the Carroll County District Court determine whether the residuary clauses of the testators' wills provided for a per capita or a per stirpes distribution. After a hearing, the trial court ruled that the residuary clauses of the wills were not ambiguous and provided for a per capita distribution.

F.M. Nagl died on December 28, 1982. He was 82, and was survived by his wife, Florence Nagl, who died thirteen months later on January 27, 1984. They had been Carroll County farmers for nearly fifty years and had no children, but left forty-five nieces, nephews, grand nieces, and grand nephews as heirs, and a considerable estate.

F.M. Nagl's will's residuary clause provided as follows:

Subject to the above and foregoing bequests set forth herein, and after my estate has been converted to cash by my executor, all the rest and residue and remainder of my estate shall be divided equally share and share alike, among my heirs and the heirs at law of my said wife, Florence R. Nagl.

Florence Nagl died thirteen months later and her will provided as follows:

Subject to the provisions of Item 1, I hereby give, devise and bequeath all real and personal property to my husband, F.M. Nagl, and in the event that my husband predeceases me, then and in that event, I give, devise and bequeath all real and personal property to the heirs at law of my husband, F.M. Nagl, and to my heirs at law, to be equally divided among said heirs, share and share alike.

The following paragraph provides as follows:

In the event that my husband, F.M. Nagl, predeceases me and after my death, it is my direction that my executor shall sell and convert all real and personal property to cash for the purpose of dividing the same among the heirs of F.M. Nagl and my heirs as hereinbefore set forth in Item 2.

At trial, on March 10, 1986, extrinsic evidence allegedly relating to the testators' intents was brought out over appellee's strenuous objections. This testimony provided that both wills were dictated by attorney Leighton A. Wederath, and typed and witnessed by his secretary Darlene Beyerink. Since Mr. Wederath had died, Ms. Beyerink was called as the main witness to explain the will. She testified she had related to Florence Nagl that her husband's estate would be distributed on a per stirpes basis and she had prepared the final inheritance tax return pursuant to a per stirpes distribution.

The trial court found no patent or latent ambiguity in the plain language of either will, did not consider the extrinsic evidence, and found the plain language of the will provided for a per capita distribution to one class of legatees. The executors who requested the ruling take no sides in this appeal, but ask that the costs of this appeal not be taxed to the estate.

Elma Schneider and Phillip Kennebeck, who proposed a per stirpes distribution, appeal, contending the trial court erred in: (1) finding no ambiguity existed in the will and denying the consideration of extrinsic

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evidence; (2) finding the residuary clauses in the wills provided for a per capita rather than a per stirpes distribution; and (3) failing to approve a practical construction of the wills.

Review of district court's decision tried in equity and interpreting a will provision, is de novo. Iowa Code § 633.33 (1985); Matter of Estate of Eickholt, 365 N.W.2d 44, 46 (Iowa App.1985). In this review we give weight to the findings of fact made by the trial court, but we are not bound by them. Iowa R.App.P. 14(f)(7).

The legal principles which apply to will interpretation cases are well known and succinctly set forth in the following:

It is well settled law (1) the testator's intent is the polestar and must prevail; (2) his intent must be gathered from a consideration of (a) all the language contained in the four corners of his will, (b) his scheme of distribution, (c) the circumstances surrounding him at the time he made his will and (d) the existing facts; and (3) technical rules or canons of construction should be resorted to only if the language of the will is ambiguous or conflicting or the testator's intent is for any reason uncertain.

Matter of Estate of Anderson, 359 N.W.2d 479, 480 (Iowa 1984); In re Estate of Larson, 256 Iowa 1392, 1395, 131 N.W.2d 503, 504-05 (1964).

A division per capita means by a number of individuals equally or share and share alike, as opposed to a division per stirpes where those of more remote kinship to testator take by right of representation. Gibert v. Wenzel, 247 Iowa 1279, 1281, 78 N.W.2d 793, 794 (1956). The determining factor in ascertaining whether beneficiaries under a will take per capita or per stirpes is the intention of the testator, which is to be found from the language used as applied to all the surrounding circumstances and conditions present in the testator's mind when the will was made. Martin v. Beatty, 253 Iowa 1237, 1241-42, 115 N.W.2d 706, 709 (1962). We will not distort or nullify the testator's clear intention through the application of arbitrary or technical rules of construction. Id. at 1241, 115 N.W.2d at 709.

We consider the residuary clauses of both wills to be functionally similar. Mr. F.M. Nagl's will provided the remainder of his estate "... shall be...