Fairley's Estate, In re

• Citation: 159 N.W.2d 286
• Decision Date: 11 June 1968
• Docket Number: No. 52918,52918
• Parties: In the Matter of the ESTATE of Rosa FAIRLEY, Deceased. Frank S. FAIRLEY and James W. Fairley, Executors, Frank S. Fairley and James W. Fairley, Executors of the Estate of Rosa Fairley, Plaintiffs-Appellees, v. Lea FAIRLEY, Frank S. Fairley and James W. Fairley, Defendants-Appellants.
• Court: United States State Supreme Court of Iowa

Page 286

159 N.W.2d 286

In the Matter of the ESTATE of Rosa FAIRLEY, Deceased.

Frank S. FAIRLEY and James W. Fairley, Executors, Frank S. Fairley and James W. Fairley, Executors of the Estate of Rosa Fairley, Plaintiffs-Appellees, v. Lea FAIRLEY, Frank S. Fairley and James W. Fairley, Defendants-Appellants.

No. 52918.

Supreme Court of Iowa.

June 11, 1968.

James T. Holmes, and Lynch, Dallas, Smith & Harman, Cedar Rapids, for defendant, appellant, Lea Fairley.

White, Stone & Horan, Marion, for plaintiffs and for defendants, Frank S. Fairley and James W. Fairley, appellees.

STUART, Justice.

This action to obtain judicial construction of the Last Will and Testament and Codicil of Rosa Fairley was brought by Frank S. Fairley and James W. Fairley individually and as executors claiming the will and codicil are ambiguous when read together and there is doubt and uncertainty as to the interests of the parties thereunder. Defendant, Lea Fairley, alleges there is no ambiguity. His application for separate adjudication of law points resulted in a final decision adverse to his construction of the instruments. He has appealed.

As the proceedings did not reach an evidentiary hearing, all we have before us are the will and codicil. After providing for the payment of debts and giving $1000 to Sarah Jane Fairley Clark, her granddaughter by a deceased child, Mrs. Fairley's will dated June 30, 1939, provided:

'ITEM THREE

'All the rest, residue, and remainder of my estate, whether real, personal or mixed of which I may die seized or possessed or to which I may then be entitled, I will, devise and bequeath as follows:

'One-third thereof to Frank S. Fairley and James W. Fairley in trust, for the use and benefit of my son, Lea Fairley. I direct that my said trustees shall act without compensation and pay annually the net income from said trust fund to my son, Lea Fairley, during the term of his natural life-time. Upon the death of my said son, Lea Fairley, then the undivided one-third interest shall be divided equally between my sons Frank S. Fairley and James W. Fairley.

'One-third thereof to my son, Frank S. Fairley and one-third thereof to my son, James W. Fairley.'

On February 18, 1952 Mrs. Fairley executed the following Codicil to her Will:

'I, Rosa Fairley, residing in the City of Marion, Linn County, Iowa, being of sound and disposing mind and memory do hereby make, publish and declare this as and for a Codicil to my Last Will and Testament dated June 30, 1939, hereby reaffirming said Last Will and Testament except as hereby changed or modified. That is to say:

'I hereby revoke Item Three of my Last Will and Testament and substitute therefor the following:

'ITEM THREE: All the rest, residue and remainder of my estate, whether real, personal or mixed, of which I may die seized or possessed, or to which I may be entitled, I will, devise and bequeath as follows:

'One-third (1/3) to Frank S. Fairley and James W. Fairley in trust, for the use and benefit of my son, Lea Fairley. I direct that my said Trustees shall act without compensation and pay the annual net income from said trust fund to my son, Lea Fairley, plus the income from an additional sum of Twenty-five Hundred Dollars ($2500.00), during the term of his natural lifetime.

'Upon the death of my said son, Lea Fairley, then the undivided one-third (1/3) interest shall be divided equally between my sons, Frank S. Fairley and James W. Fairley.'

The trial court concluded 'the intent of the testator is obvious from an objective and unbiased reading of the will and codicil when read together' and found 'no ambiguity, latent or patent, which is apparent from a reading of the instruments'. He rendered judgment as follows:

'That the Will and Codicil of the testator, Rosa Fairley, effectively serve to vest in James W. Fairley and Frank S. Fairley as trustees for the use and benefit of Lea Fairley, a sum equal to one-third of the rest, residue and remainder of the estate of the decedent after the payment of all debts, claims, expenses of administration, taxes, and the bequest provided for in Item II of the original Will of the testator of $1,000 to Sarah Jane Fairley; that said Will and Codicil serves to vest in the said trustees, Frank S. Fairley and James W. Fairley, an additional sum of $2,500, and that said resultant trust estate shall pass to the said Frank S. Fairley and James W. Fairley in trust for the use and benefit of the beneficiary, Lea Fairley, during the term of his natural life only. That upon the death of the said Lea Fairley the corpus of said fund shall pass to and be divided equally between Frank S. Fairley and James W. Fairley.

'(2) That said Will and Codicil effectively vests in each James W. Fairley and Frank S. Fairley an undivided one-half interest in and to all sums and property remaining after the establishment of the trust fund for the benefit of Lea Fairley above referred to.'

I. We concede the trial court's decision probably rendered substantial justice in this case and the result approached that which testatrix would have desired. However, we do not believe his decision can be affirmed under recognized rules of will construction. Although our purpose is to arrive at the true intent of the testatrix, experience has demonstrated the advisability of adhering to established rules for the construction of wills rather than freeing judges to operate on broad principles of equity and justice. 51 I.L.R. 103--106.

It is a universal rule that a testator's intention must be gathered from the language of the instrument where such language is clear and unambiguous. 'The question is not what the testator meant to say but what he meant by what he did say.' In re Estate of Hogan, 259 Iowa 887, 146 N.W.2d 257, 258; In re Estate of Winslow, 259 Iowa 1316, 147 N.W.2d 814, 818; Bankers Trust Co. v. Allen, 257 Iowa 938, 944, 135 N.W.2d 607, 610--611. If the language of the will and codicil is clear and unambiguous this rule applies. In making this determination we read and construe the two instruments as one executed on the date of the codicil. Watson v. Manley, 257 Iowa 92, 97, 130 N.W.2d 693, 696; In re Estate of Artz, 254 Iowa 1064, 1070, 120 N.W.2d 418, 422.

It seems anomalous to say we agree with the trial court that the language of the will and codicil read together is clear and unambiguous and then reach the opposite conclusion as to the meaning. However, the trial court's decision appears to be a logical speculation on what testatrix meant to say, but didn't, rather than determining the meaning from what she did say.

'Item Three' of the will disposed of testatrix's remainder estate in equal one-third shares to her sons. Frank and James were to receive their shares outright. Lea's share was given to them in trust and he was to receive the income for life. On Lea's death Frank and James were to divide his one-third share.

The codicil specifically revoked 'Item Three' and substituted a different provision. This provision increased the trust fund by adding $2500 to Lea's one-third share of the remaining estate. The one-third share was to be divided equally between Frank and James when the trust terminated. The codicil did not dispose of the additional $2500 upon termination of the trust. It did not dispose of the remainder of testatrix's property. We do not believe the language of the instruments lends itself to any other construction. There is no indication anywhere in the codicil that the revocation was not to apply to the second paragraph of 'Item Three'. Under this construction Mrs. Fairley died intestate as to two-thirds of her estate including the $2500 in trust subject to Lea's life estate.

We are not suggesting testatrix sought this result in her testamentary planning and agree with the trial court that she did not mean to leave anything to Lea Fairley outright. However, the situation is similar to the one with which we were faced in Bankers Trust Co. v. Allen, 257 Iowa 938, 135 N.W.2d 607, where decedent's will failed to dispose of the share of his estate included in a bequest to his sister, which lapsed. As a result, one-half of testator's large estate went to his heirs, some of whom he did not even know. We said: 'The testator's intention must be determined from what he said, not from what it may be supposed he intended to say or should have said.' 257 Iowa at 944, 135 N.W.2d at 610.

'Indeed it may be conceded testator did not intend to will any of his property to any of his heirs other than his sister Mary. They make no claim under the will. Their claim is under the statutory rules of descent. The only way decedent could vary these rules is by making an effective gift, either expressly or by necessary implication, at variance therewith. That he did not do. Certainly he made no express provision for the disposition of Mary's share if she did not survive decedent. None is claimed. There is a strong presumption (we have said 'very strong') decedent did not intend a bequest not expressed in the will.' 257 Iowa at 945, 135 N.W.2d at 611.

Appellee argues wills are to be construed to avoid partial intestacy. In re Estate of Austin, 236 Iowa 945, 948, 20 N.W.2d 445, 447, 162 A.L.R. 709; Myers v. Smith, 235 Iowa 385, 393, 16 N.W.2d 628, 632, 155 A.L.R. 1413; Busby v. Busby, 137 Iowa 57, 61, 114 N.W. 559. This is particularly true when, as here, the instrument expresses an intent to dispose of all of testatrix's property.

'It is true, * * *, there is a presumption a testator intends to dispose of his entire estate. But the language of the will must be sufficient to carry the whole. The presumption referred to does not permit us to write into the will a provision omitted therefrom.' Bankers Trust Company v. Allen, 257 Iowa 938, 947, 135 N.W.2d 607, 612.

'The presumption does not require the court to make a new will, nor to include in it property not comprehended by its terms, and cannot be invoked to establish a gift against the...