Hansen's Estate, Matter of

• Decision Date: 19 April 1978
• Docket Number: No. 60459,60459
• Citation: 264 N.W.2d 746
• Parties: In the Matter of the ESTATE of Ole J. HANSEN, Deceased. CENTRAL NATIONAL BANK & TRUST COMPANY, Executor, Appellee, v. Lyle A. HANSEN, Ardell Hansen, and Dallas D. Hansen, Appellants, and Orville J. Hansen, Appellee.
• Court: Iowa Supreme Court

Page 746

264 N.W.2d 746

In the Matter of the ESTATE of Ole J. HANSEN, Deceased.

CENTRAL NATIONAL BANK & TRUST COMPANY, Executor, Appellee, v. Lyle A. HANSEN, Ardell Hansen, and Dallas D. Hansen, Appellants, and Orville J. Hansen, Appellee.

No. 60459.

Supreme Court of Iowa.

April 19, 1978.

Herrick, Langdon, Belin, Harris, Langdon & Helmick by Charles E. Harris and Curt L. Sytsma, Des Moines, for appellants.

Cullison & Cullison and Louis, Moore & Kohorst, Harlan, for appellee Hansen.

Considered by MOORE, C. J., and MASON, UHLENHOPP, REYNOLDSON, and McCORMICK, JJ.

UHLENHOPP, Justice.

This appeal involves a question, among others, of whether two clauses in a will are contradictory or compatible.

Testator Ole J. Hansen owned 80 acres of land (the eighty) which he mortgaged in 1964 to buy additional land. He had four children, Orville, Lyle, Ardell, and Dallas, and during his lifetime he made various gifts to them to assist them. He rented the eighty to Orville for $5 per acre plus taxes and upkeep. Orville also placed improvements on the eighty and paid the installments which became due on the mortgage. Testator's wife predeceased him.

In 1972 testator executed his will, which was prepared by a layman. We set it out:

I, Ole J. Hansen of Kimballton, Iowa, County of Audubon, State of Iowa, being of sound and disposing mind and memory, and mindful of the uncertainty of human life, do hereby make, publish and declare this my Last Will and Testament as follows, hereby revoking all wills by me at any time heretofore made.

Section 1. I direct that all my just debts, funeral expenses and the cost of administering my estate be paid out of the principal of my estate.

Section 2. I request and bequeath that my beloved children, Orville J. Hansen, Lyle A. Hansen, Ardelle Hansen, and Dallas D. Hansen are to share and share alike all my personal, Real estate, Stocks and Bonds.

Second: I further request, my son Orville J. Hansen, is to have the 80 acres, situated and described as follows: Jackson Township 79, Range 37, Shelby County, Iowa

NE NW Sec. 25-40-1

SE NW Sec. 25-40

At the price of $265.00 per acre. The mortgage on this farm is to be paid by Orville J. Hansen, of which this loan was used, to purchase the Peter Mikkelsen farm, in the year 1964. Furthermore an agreement was made between my son, Orville J. Hansen and I, Ole J. Hansen, in the year 1964, whereby, Orville was to pay taxes, upkeep, and cash rent at $5.00 per acre, per year on the above mentioned 80 acres. This unpaid rent is to divided equally to share and share alike between the above mentioned heirs, my beloved children.

Third: I hereby appoint my son, Lyle A. Hansen, executor of my last will and Testament to serve without Bond.

IN WITNESS WHEREOF, I have hereunto subscribed my name as testator this 18th day of November in the year of our Lord One Thousand Nine Hundred and seventy-two.

The 80 acres described in paragraph Second of Section 2 of the will constitutes the eighty in question.

Testator died on December 31, 1975, survived by his four children. His will was admitted to probate.

The four children disagreed as to the effect of paragraph Second of Section 2. Lyle declined to act as executor, the probate court appointed a bank, and the bank petitioned the probate court to construe that paragraph.

The probate court held that Orville has an option to buy the eighty for $265 per acre and payment of the mortgage, that Orville must also pay the unpaid rent of $5 per acre per year, and that the proceeds from Orville's purchase of the eighty, plus the rent, will constitute assets of the estate. The court also held that the will is clear and unambiguous and no necessity exists to consider extrinsic evidence. Lyle, Ardell, and Dallas appealed. We will refer to them as appellants.

I. Appellants argue that the trial court should have considered extrinsic evidence in construing the will. They did not have the probate court proceedings reported, and while that court stated in its decision that extrinsic evidence is unnecessary we have no actual ruling refusing to admit extrinsic evidence; at no point in the record do we find that appellants proffered extrinsic evidence. Were we to reverse to permit admission of extrinsic evidence, we would do so on speculation that such evidence exists and that it would affect the result. If appellants desired to make and preserve a point on the court's refusing to receive and consider extrinsic evidence, they should have asked to have a report made of the proceedings, tendered their evidence, and made an offer of proof if it was refused. Since the proceeding was in equity, Code 1977, § 633.33, probably an offer of proof would have been unnecessary the court would have received the evidence subject to the objections made, if any. Then we could have seen that extrinsic evidence actually exists and what it consists of. Grosjean v. Spencer, 258 Iowa 685, 695, 140 N.W.2d 139, 145 ("We have no idea what the excluded evidence of Mrs. Grosjean and Dr. Liechty might have shown. It might have supported plaintiffs' case and it might have harmed it. We cannot predicate error upon speculation as to the answers."); 5 Am.Jur.2d Appeal & Error § 604 at 69-70; 4 C.J.S. Appeal & Error § 291 at 893, 895-900.

Endeavoring to explore appellants' present argument fully, we have examined all of the records from the probate court, including letters from testator, minutes of devisees' meetings, appellants' trial-court brief, and the contents of the entire probate file, but we find nothing which would affect the result in the case. On the record presented we reject appellants' argument relating to extrinsic evidence.

II. Appellants next argue that a proper reading of testator's will reveals the two paragraphs of Section 2 are contradictory and paragraph Second must therefore fail. Reaching a contrary result, the probate court relied on In re Estate of Roberts, 171 N.W.2d 269 (Iowa).

We have examined the Roberts decision and find it indeed persuasive in the case at bar. Involved in Roberts, as here, was the question whether two clauses in a will were conflicting or compatible. Rejecting older decisions which perhaps more easily found a conflict between will clauses, this court stated in Roberts at page 273:

Regardless of some past pronouncements, we now prefer the rule that only where subsequent provisions of a testator's will are clearly in conflict with specific gift provisions and both cannot stand, can the clear and obvious intent of the testator be disturbed and the subsequent provisions be declared ineffective.

The will in Roberts actually presented a stronger argument for conflict than here. The case involved paragraphs 2, 3, 4, and 5 of Roberts' will. In paragraph 2 Roberts gave his wife $40,000 of personal property and, in case of deficiency, enough real estate of her choosing to make up $40,000 (she did not choose to take any of the particular farm in question). In paragraph 3 he gave his wife the life use of all his property with power of sale as needed for her maintenance (she did not sell the farm in question). In paragraph 4 he directed his executor to sell the farm in question to Vern A. Roberts for $300 per acre. Finally, in paragraph 5 Roberts directed "After the said life use given above" that "all" of his real and personal property should go to his four children.

This court reconciled and gave effect to all of these will clauses and did not find a necessity to void the paragraph giving Vern A. Roberts an option. The four children would not get the farm in question itself if Vern exercised the option, but they would get its proceeds; the gift to them of "all" property could thus be carried out. The court was careful at page 273 to distinguish a case of genuine conflict: "This is not the case of a bequest of Blackacre to A and an attempt by a subsequent provision to grant an option to buy Blackacre to B."

The present case falls under Roberts. Appellants cite several other cases but those decisions are distinguishable on the facts or are older decisions of a kind somewhat disparaged in Roberts. Among them is Todd v. Stewart, 199 Iowa 821, 202 N.W. 844. There the will in paragraph 13 gave the "Blackledge farm" to residuary devisees "absolutely and in fee simple" but in a subsequent paragraph changed the gift in an unreconcilable fashion; one or the other of the paragraphs had to give way. Another is In re Estate of Bigham, 227 Iowa 1023, 290 N.W. 11. In that case however the two paragraphs in question were not inconsistent with each other. A third case is a classic example of a precatory paragraph as distinguished from a conflicting one, In re Estate of Lewis, 248 Iowa 227, 80 N.W.2d 347. We will return to this case for further consideration. A fourth case is Schmidt v. Claus, 250 Iowa 314, 93 N.W.2d 592. That case appears irreconcilable with the Roberts decision and perhaps precipitated the altered view enunciated in Roberts. Credence to this conclusion derives...