In re Clifton's Estate

• Decision Date: 03 April 1928
• Docket Number: No. 38540.,38540.
• Citation: 218 N.W. 926,207 Iowa 71
• Parties: IN RE CLIFTON'S ESTATE.
• Court: Iowa Supreme Court

207 Iowa 71

218 N.W. 926

IN RE CLIFTON'S ESTATE.

No. 38540.

Supreme Court of Iowa.

April 3, 1928.

Appeal from District Court, Washington County; H. F. Wagner, Judge.

Proceedings in probate for construction of the will of Charles C. Clifton, deceased. By this will two-thirds of the estate was left in trust in the hands of the executor, Fred E. Palmer, for testator's only child, Clarence, with a provision that if Clarence died without leaving any heirs testator wanted the remaining part of the estate left in trust to some “old ladies' home * * * located nearest to Washington, Iowa.” Clarence survived testator. While the trust was still in force Clarence died, without issue, bequeathing his interest in the trust estate to Carrie M. Powell, Genevieve Haw, and Charles E. Lauder, his maternal aunts and uncle. Testator's brother, W. H. Clifton, makes claim to share in the distribution, and Mrs. Powell, Mrs. Haw, and Mr. Lauder claim the fund under the will of Clarence. The Mary O. Coldren Home of Aged Women, of Iowa City, and the Washington Home, of Washington, Iowa, make claim under the bequest over to “some old ladies' home.” The trial court found in favor of the claimants under the will of Clarence. The other claimants appeal. Reversed.

Stevens, C. J., and Evans and Kindig, JJ., dissenting.Livingston & Eicher, of Washington, Iowa, Clearman & Olsen, of Iowa City, and Morrison & Morrison, of Washington, Iowa, for appellants.

Roberts & Roberts, of Ottumwa, and Brookhart Bros. of Washington, Iowa, for appellees.

MORLING, J.

Stated in general terms, the principal question argued is whether Clarence took a transmissible right of property or interest in the trust estate. In our view of the case it is necessary to consider only three questions: (1) and (2), inseparable, whether the devise over if Clarence died “without leaving any heirs” is limited to event of his death in testator's lifetime, and whether testator used the word “heirs” in its technical sense or in the limited sense of descendants or heirs of the body; (3) assuming that the devise to Clarence was, or might be, of the absolute equitable or legal ownership, whether such ownership was base, qualified, or terminable. The will of Charles C. Clifton provided in the first clause for payment of debts. The second clause was a bequest of one-third of the estate to the widow, Martha E. Clifton. The controversy relates solely to the third clause, which reads as follows:

“The remaining two-thirds to be left in trust, in the hands of my executor hereafter named, for my son, Clarence C. Clifton, who is inclined to let money slip through his hands and I want him provided for till he has reached an age where he can make good use of the estate. If the executor thinks he is capable of taking care of his money without losing it, then he can have the use of it. If not capable it must still be kept in trust for him. In case the executor named should die or resign, I then ask the court to appoint some good reliable farmer that would be acceptable to my son, Clarence. I request that the banking business be done through the Washington National Bank. And I want Brookhart Bros. for legal advisors when needed.

If my son, Clarence, dies without leaving any heirs I then want the remaining part of my estate left in trust to some old ladies' home that is located in Iowa, nearest to Washington, Iowa.

I appoint Fred E. Palmer of Washington county, Iowa, my executor with bonds.”

Testator was married three times. His first wife (May Lauder) died in 1894, a few days after the birth of Clarence C. Clifton, their only child. The second marriage terminated by the death of the wife. The third marriage took place February 29, 1912, the wife by that marriage, Martha E., surviving testator. There were no children by the second or third marriage. Clarence made his home with his father until his father's death, which was December 24, 1916. The father's will is dated April 10, 1914. Testator's age is not shown, but his widow at the time of the trial was 75. The widow's testimony is that Clarence “was not a rugged or strong boy. * * * He never had done any farm work. He went to school some. * * * In some things he was not just as bright as he might have been, but in other things he was just as normal as any one. He was good natured and easily influenced. * * * My husband was never at any time away visiting with relatives of Clarence's mother during the period of time we were married. I never saw them, only Charles Lauder the one time. Never did my husband during our married life go to visit with any of Clarence's relatives on the mother's side. He never visited them and they never visited him,” except one occasion when Charles Lauder was there. She testified that they “were in a way friendly, but never corresponded. Mr. Clifton cared nothing at all for the family.” No mail came from them. The testimony of testator's brother, W. H. Clifton, who lived in testator's vicinity, shows that he and testator and a sister, who died after the making of the will, were very intimate; that he and testator associated together continuously; that they talked over their relationships to some extent. “We might have mentioned our relatives in a casual way, but I don't ever think we did. We both knew we both had relatives.” Testator was the only one of his father's children who married. Testator had a large number of collateral relatives. The claimants, Charles E. Lauder, lived at Monmouth, Ill., Mrs. Haw in Ottumwa, Iowa, Mrs. Powell in Kansas City, Mo. Charles E. Lauder, testifying in behalf of himself and his sisters, gave the names of six brothers and sisters of Clarence's mother, five of whom were living. One of those living had four or five children. One sister had died (he says) “if I remember rightly leaving children. I couldn't name those children, but I think there were three or four. The last I heard of them they resided in Des Moines, Iowa. That was two or three years ago.” Charles has three children. Mrs. Haw one. Charles did not testify, nor was there any further evidence, regarding the relationship between Charles C. Clifton or Clarence and the first wife's relatives.

The record does not show where Clarence lived after his father's death. Clarence made a will dated March 4, 1925, in which he described himself as being of Kansas City, Mo. By a separate section of the will Clarence recited that he had an estate in Washington, Iowa, left to him by his father in trust of which F. E. Palmer was trustee, amounting to some $12,000 or $13,000, and bequeathed it to Mrs. Carrie M. Powell, Mrs. George Haw, and Charles E. Lauder. Clarence died in September, 1925.

The Mary O'Coldren Home for aged women has been in operation at Iowa City, Iowa, since 1908, accommodating an average of twelve women. The Washington Home of Washington, Iowa, was incorporated August 27, 1925. It has never been in operation.

The testator was a farmer all his life, except that he at one time lived in Washington, Iowa, engaged in the ice business and restaurant business. The will was drawn by his third wife.

The final report of the trustee, F. E. Palmer, filed March 15, 1926, in the district court of Washington county showed on hand for distribution $11,286.60.

The contention in behalf of Clarence's legatees is, in substance, that the two-thirds interest bequeathed to Clarence vested in him “at the testator's death, subject only to a temporary possession in the trustee during the lifetime of Clarence. * * * That if said two-thirds did not at said time vest in Clarence, * * * it did vest absolutely in Clarence's heirs and beneficiaries at the death of Clarence, at which time the trust terminated.” They also argue:

“That if Clarence died intestate leaving no direct heirs, then said two-thirds should go to some old ladies' home. It is evident that the testator intended that said two-thirds should go either to Clarence absolutely with possession and control deferred or to some old ladies' home. * * * If the testator's only thought was to have his son Clarence properly provided for and to give him no other or greater interests if he died without heirs, then, it would seem to have been the clear intention of the testator that ‘dying without heirs' meant dying without children or heirs of his body. If dying without heirs meant dying before testator's death, that would have necessarily meant children or heirs of his body because the testator was bound to know that he would have been the sole heir of Clarence and Clarence would not have died without heirs. * * * We think the fact that in connection with the clause ‘dies without leaving any heirs' he does not mention his brother or any collateral heirs, but does mention some old ladies' home, cannot be reconciled with the thought that he intended to give said two-thirds to his collateral heirs.’'

[1] Though trite and monotonous reiteration to say so, it must be held constantly in mind that the object of testamentary interpretation is to ascertain the purpose of the testator and when ascertained to give it effect, if this can be done without violating any settled rule of law. In the search therefor the court must, as nearly as it can, take its position in the environment of the testator and in the light of the facts known to him and in which he wrote the will.

I, II. Does the clause, “If my son Clarence dies without leaving any heirs,” mean Clarence's death in testator's lifetime, or does it extend to the event of his death after that of testator, without leaving heirs? And inseparable from this question, does the word “heirs” mean heirs at law in the technical sense or is it the equivalent of heirs of the body or descendants? It is manifest that testator could not have intended the clause in question to mean death in testator's lifetime and at the same time intended the word “heirs” in its technical sense of “heirs at law.” If the intention of testator was to limit the devise over...