In re Estate of Eason

• Decision Date: 11 February 1947
• Docket Number: 46955.
• Citation: 26 N.W.2d 103,238 Iowa 98
• Parties: In re EASON'S ESTATE. EASON v. ERICKSON et al.
• Court: Iowa Supreme Court

26 N.W.2d 103

238 Iowa 98

In re EASON'S ESTATE.

EASON v. ERICKSON et al.

No. 46955.

Supreme Court of Iowa

February 11, 1947

C B. Hoeven, of Alton, and T. E. Klay, of Orange City, for appellant.

Van Oosterhout & TePaske, of Orange City, and T. R. Johnson of Sioux Falls, S. D., for appellees.

SMITH Justice.

The will of Susan Eason who died May 21, 1943, was as follows:

'Alton, Iowa

'September 10, 1940

'To Whom It May Concern

'Mrs. Susan Eason wife of the Late Stephen Eason Leaves this last Will and Testment being the Mother of the Faweling Children Mary being Desesed whose Children are Marllys Floyd Oral Stephen and James Jackson these Children are to receive Each one Hundred and Fifty Dollars as their share as Clarance and Mary have had a considerable amount on nots these nots have not been Redemed. The Fauling Children are to receive one Thousand Dollars Each Oscar Ernest Hilda Emilia Alvin Zella and Fred 7 of them, because George and John have had that amount in time Past Debts between the Children shall be paid From their Respective share before they receive Eny of their inheritance these Debts must be proven with Nots or Checks From Eny Date My Privet Posesion shall be given to the Highest Bider among my Children. I hope this may be satisfactery to all and Eney one who in Eny way Contests this Will Forfits Eney Right to Eney of my Estate. Oscar shall serve as my Executer with out Bond.

'(Signed) Mrs Susan Eason

'John J. Schmidt

'Theresa M. Schmidt.'

The will was admitted to probate June 22, 1943. Decedent's property consisted of real estate valued by the executor at $29,800 and bonds, household goods, cash and bank account $1483.26. No debts are shown. She left surviving her nine children and five grandchildren, children of a deceased daughter, all referred to in the will. Her husband, Stephen Eason pre-deceased her in 1935.

It will be seen the will gave to each of the five grandchildren $150 and to seven of the nine living children (omitting George and John) $1000 each, making a total of $7750 in cash bequests. The principal controversy here concerns the disposition to be made of the estate remaining after payment of the cash bequests. The executor (appellant) contends the grandchildren are excluded from participating in the residuary estate. Four of the grandchildren object claiming it should go to all heirs according to the laws of descent.

An alternative contention is made by the executor. Two notes came into his hands payable to 'S. Eason' aggregating $6339 and signed by decedent's deceased daughter (mother of the objectors) and by her husband. The executor argues that if it be held appellees are entitled to share in the residuary estate the amount of those notes should be offset against their residuary shares.

The trial court adjudged that as there was no residuary clause the remainder of the net estate after payment of the cash bequests should go as intestate property according to the laws of descent and that the executor had no right of retainer and offset as against the shares of the grandchildren on account of the alleged indebtedness of their mother to the estate.

1. The executor on appeal urges several propositions in support of his principal contention: The intention of the testator governs and 'when ascertained will be enforced regardless of abstract, arbitrary or technical rules of construction'; all relevant circumstances are to be considered in connection with the language of the will itself; and there is a presumption against intestacy.

Many cases are cited in support of these propositions but we shall not discuss them as the principles are well settled. The difficulty confronting appellant is in their application here. We do not find in this Record any circumstances outside the will itself that tend to reveal any intention with regard to the residuary estate. Appellant in argument points out nothing we deem significant in the testatrix' situation or surroundings when the will was executed.

It is clear the instrument was drawn by one (probably testatrix herself) unskilled in the use of language. Appellant says: 'It will be noted that she had no personal property at the time of the execution of the will and that she was considering only the division of her real estate.' We find no significance in the fact itself even if established. If there was no personal estate or if it was insufficient to pay the cash bequests testatrix must have contemplated that the real estate would have to be sold and the bequests paid in whole or in part from the proceeds. There would in any case be a residuary estate.

She had nine children living and five grandchildren, Children of her deceased daughter. In arranging the cash bequests she discriminated by giving each grandchild only $150 (instead of $200) and by giving nothing to her sons, George and John, while bequeathing each of her remaining seven children $1000.

She gives reasons for this discrimination. In the case of the grandchildren she explains they are to receive the bequests '* * * as their share as Clarence and Mary (their parents) have had a considerable amount on nots these nots have not been Redeemed.' And as to George and John she says they 'have had that amount in time past.'

Appellant assumes that all the children share in the residuary estate. He bases his contention as to the grandchildren upon the words 'as their share' and the further statement that their parents have had a considerable amount on notes that have not been redeemed.

We cannot read into this language (in the absence of a residuary clause) an intention to disinherit the grandchildren or an intention to dispose of the entire estate by will. The words, 'as their share,' must be construed to mean 'as their share under this will' and not as their share of the undevised property. The testatrix was manifestly not disposing of her entire estate. What is not expressly bequeathed or devised can only pass by inheritance. Testatrix did not give the rest of her estate to her living children. Whatever they receive more than $1,000 each will be received by themas heirs. The argument of appellant would mean that one can by will disinherit his heir without disposing of his property otherwise. We agree with appellees that 'a negative exclusion is not equivalent to an affirmative gift.'

In Fletcher v. Fletcher, 200 Iowa 135, 204 N.W. 410, 411, this court quoted with approval from 3 Woerner on American Law of Administration, 3d Ed., 1384, § 418: The devolution of title to the property of a person dying, cast by the statute of descent and distribution upon his heir or next of kin, makes it indispensable, if a testator wish to disinherit him, not only to express his intention to that effect, but to vest the title, by plain words of gift, or necessary implication, in some other person.' (Italics supplied.)

A case analogous to the instant case, but in which the language of the will is stronger than here, is In re Will of Davies, 192 Iowa 723, 185 N.W. 578, 579. In it the testator in his original will gave his daughter one-fifth of the residue of his estate. In a codicil he changed this provision, saying: '* * * instead of giving to the said Elvira Ann Davies the one-fifth of my said estate I give and will to my said daughter * * * the sum of two hundred...