Guilford v. Gardner

• Decision Date: 07 April 1917
• Docket Number: No. 31150.,31150.
• Citation: 180 Iowa 1210,162 N.W. 261
• Parties: GUILFORD ET AL. v. GARDNER ET AL.
• Court: Iowa Supreme Court

180 Iowa 1210

162 N.W. 261

GUILFORD ET AL.

v.GARDNER ET AL.

No. 31150.

Supreme Court of Iowa.

April 7, 1917.

Appeal from District Court, Decatur County; Thomas L. Maxwell, Judge.

Action for the construction of the last will and testament of R. D. Gardner, deceased. From the finding and judgment of the district court, the plaintiffs appeal. Affirmed.C. W. Hoffman and Ed. H. Sharp, both of Leon, for appellants.

V. R. McGinnis, of Leon, and Miles & Steele, of Corydon, for appellees.

WEAVER, J.

R. D. Gardner was a practicing physician, residing in the town of Leon, Iowa, for many years. At the time of his death he was the owner of over 1,200 acres of land in Decatur county and two residence properties in Leon, and was also possessed of some personal property, including moneys and credits to the value of over $10,000. He died testate in the year 1912, leaving surviving him his wife, Almena Elizabeth Gardner, and one child, a son, Charles E. Gardner. The material provisions of the will (omitting merely formal parts) are as follows:

“Second. I will, bequeath and devise to my beloved wife, Almena Elizabeth Gardner, the following real estate, to wit: Lot number one (1), in block No. five (5), in Richardson's addition to Leon, Iowa, the same being the homestead now occupied by myself and wife. I also bequeath, devise and give unto her my beloved wife, one-half in value of all the real estate and personal property, including moneys and credits of every kind and description of which I may die seised, saving and excepting the house and lot hereinafter bequeathed and devised to my beloved son, Charles Edgar Gardner.

Third. I will, bequeath and devise to my beloved son, Charles Edgar Gardner, the following real estate, to wit: Lot No. two (2), in block No. five (5), in Richardson's addition to Leon, the same being the property now occupied by him as a homestead. I also give, devise and bequeath unto my beloved son one-half in value of all the real estate and personal property, including moneys and credits of every kind and description, of which I may die seised, saving and excepting the house and lot hereinbefore devised to my beloved wife. Provided however, the portion of my estate herein willed, devised and bequeathed to my beloved son, Charles Edgar Gardner, is on condition, that if he should die without issue living, then the portion of my estate devised and bequeathed to him shall revert and go to my beloved wife, Almena Elizabeth Gardner.

Fourth. That at my death in case my beloved wife and son cannot agree upon a division of the property of which I may die seised, then it is my will and wish that each shall select a good man to make division of my estate between my said beloved wife and son, and in case the two so selected cannot agree upon a division, then the two so selected shall select a third person who shall assist in making such division of property, but the persons so selected to make such division of my estate, as herein directed, shall before entering upon their duties go before the clerk of the court and take oath to discharge their duties as such referees to the best of their knowledge and understanding.

Fifth. Having full faith and confidence in my beloved wife, Almena Elizabeth Gardner, and my beloved son, Charles Edgar Gardner, it is my will that they act as executrix and executor of my last will and that they so act without giving bond or taking out papers of administration, or being put to any expense save and excepting the probating of this my last will and testament.

In witness whereof, I have hereunto signed my name this 6th day of November, 1886.

R. D. Gardner.

Witnesses: Frank Gardner, Will Gardner.

Codicil--That after due consideration I have concluded to have my administratrix and administrator give bail for the faithful performance of their duties and take out letters of administration.

R. D. Gardner.”

Prior to the date of this will the son, Charles E. Gardner, had married Carrie Guilford. The evidence tends to show that the relations between the testator and his son's wife were not altogether harmonious or pleasant, the testator being inclined to the view that the daughter-in-law was extravagant and wasteful. The son outlived his father and died intestate and childless February 3, 1915, survived by his wife, Carrie Guilford Gardner. Some years before the death of the testator Carrie Guilford Gardner became of unsound mind, and has never recovered therefrom. Shortly before the son's death a written contract was entered into between him and his mother, Almena Elizabeth Gardner. As this writing is in some respects obscure, and an abbreviated statement of its general effect is somewhat difficult, we extend this statement for its quotation in full, as follows:

“Agreement of Settlement.

“Know all men by these presents that, whereas, one R. D. Gardner, husband of the undersigned, A. E. Gardner, and father of the undersigned,C. E. Gardner, they being his sole and only heirs at law and legatees, did on the 6th day of November, 1886, make and execute his last will and testament, giving to the said A. E. Gardner his widow, lot 1 in block 5, Richardson's addition to the town of Leon, Iowa, the same being their homestead, and the undivided one-half in value of all the real estate and personal property including moneys and credits of every kind and character of which he might die seised, and whereas, the said R. D. Gardner did in said instrument give to his son, C. E. Gardner, lot 2 in block 5 of Richardson's addition to the town of Leon, Iowa, and the undivided one-half in value of all of the real estate and personal property, including moneys and credits, of every kind and description of which he might die seised, upon the condition that the part willed to the said C. E. Gardner should, if he should die without issue living, be devised, bequeathed and revert to his said wife, A. E. Gardner; and whereas, said will was duly probated on the 25th day of March, 1913, and recorded in Book 8, page 114, of the Probate Records of the district court of Decatur county, Iowa, and whereas, the said C. E. Gardner is now in ill health and no settlement or distribution of said property ever having been made by and between the said A. E. Gardner and C. E. Gardner, and that the same consists of a large amount of real estate, to wit: 1,226 acres of land in Decatur county, Iowa; certain residence properties in the town of Leon, Iowa, and a large amount of moneys and credits amounting to about the sum of $10,000.00 or more, and that said parties hereto are desirous of settling said matters amicably, and to the best interests of both:

“It is now therefore agreed that the said C. E. Gardner is to have and retain in his own right and name all of the property to which the title now stands in his own name, for his own use and benefit, and that all of the personal debts of the said C. E. Gardner shall be paid out of the estate and the proceeds thereof of R. D. Gardner. That the said A. E. Gardner is to have and retain lot 1, block 5, Richardson's addition to the town of Leon, Iowa, bequeathed to her in said will, and all of the lands now standing in her own name for her own individual use and benefit, and that the remainder of said estate shall be placed in the hands of Fred Teale, as trustee, or in case of his inability or incapacity to act as such trustee, then some one to be appointed by the court: Providing, however, at all times that the said C. E. Gardner is not able on account of ill health or other inability to look after and care for said estate, but that in case the said C. E. Gardner at any time is able to look after and care for said estate by reason of his physical health and strength, then that the same is to be turned back into his hands for that purpose.

“That it is agreed that out of the said estate there shall be set aside a trust fund in the sum of two thousand dollars, to be held by the said Fred Teale, as trustee, or in case of his inability to act, some one to be appointed by the court, and his successors, whoever they may be, and that the income therefrom is to be turned over to the Leon Cemetery Association for the purpose of caring for the lot and graves of the family of R. D. Gardner, including the parties hereto, and any other members that may be buried thereon, and, to care for the lot and graves of the mother of A. E. Gardner and others buried on said lot, and the remainder of said income to be used generally for the care and beautifying of said cemetery. Said fund to be made a perpetual trust fund for that purpose. That the sum of one thousand dollars shall be set aside as a trust fund to be held by the said Fred Teale as trustee, or his successors as appointed by the court herein, the income from which shall be used for the purpose of caring especially for the lot and graves of the father and mother of Carrie Gardner, and others buried thereon, in the cemetery at Toledo, Iowa, and, any excess after caring for said lot and graves to be used for the general care and beautifying of said cemetery. Said fund to be perpetual, and the income therefrom to be used for the purpose above set out.

“It is estimated that the real estate belonging to said estate is of the reasonable value of eighty thousand dollars, and that the personal property belonging thereto is of the reasonable value of about ten thousand dollars, making a total in value of some ninety thousand dollars.

“That in case of the inability or incapability of the said C. E. Gardner to continue active charge of said estate and property, that the said Fred Teale shall be chosen as trustee thereof, and shall continue and conduct the affairs of the same, but that in case the said C. E. Gardner at any time is able to look after the affairs of said estate, that the same is to be returned to his possession, custody and control to be continued as he and his mother may agree.

“That while the same is in the hands of said trustee there...