In re Estate of Pottorff

• Decision Date: 17 October 1933
• Docket Number: 42031
• Citation: 250 N.W. 463,216 Iowa 1370
• Parties: IN RE ESTATE OF CHARLES P. POTTORFF
• Court: Iowa Supreme Court

250 N.W. 463

216 Iowa 1370

IN RE ESTATE OF CHARLES P. POTTORFF

No. 42031

Supreme Court of Iowa, Des Moines

October 17, 1933

Appeal from Wapello District Court.--C. F. WENNERSTRUM, Judge.

This was an action brought to construe the will of Charles P Pottorff. Opinion states the facts.

Affirmed.

Heindel & Hunt, for appellant.

E. K Bekman and W. G. Taylor, for appellee.

MITCHELL J. ALBERT, C. J., and STEVENS, KINDIG, ANDERSON, and KINTZINGER, JJ., concur.

OPINION

MITCHELL, J.

Charles P. Pottorff lived in Wapello county and held a position as a railroad conductor. He was injured in a railroad accident of some kind, which is not set out in the record, and from said injuries died. He left a will, which will was duly admitted to probate in the district court of Iowa, in and for Wapello county. One W. E. Aubry became the duly appointed, qualified, and acting administrator with the will annexed of the estate of Charles P. Pottorff, deceased.

The will was introduced in evidence, and is as follows:

"In the Name of God, Amen: I, Charles P. Pottorff being of sound mind and memory, but knowing the uncertainty of human life, do now make and publish this my last will and testament, that is to say: All Property or moneys That I may have at my Death be willed to my Mother Mrs. Mary E. Pottorff Providing she is Living at that time if not then be Divided Equally Between my Nieces & Nephews But in Case I shall be married at that time will Revert to my wife and children should there be any."

On the 9th day of September, 1931, Mrs. Mary E. Pottorff Drew, the mother of Charles P. Pottorff, filed in the office of the clerk of the district court of Wapello county, Iowa, an application, asking that the court enter an order declaring the said Mrs. Mary E. Pottorff to be the sole beneficiary under the provisions of said will, and that the proceeds of all property belonging to said Charles P. Pottorff be turned over to and be paid to the said Mrs. Mary E. Pottorff. To this application there was filed a resistance by W. E. Aubry, the duly appointed, qualified, and acting administrator with the will annexed of the estate of Charles P. Pottorff, setting out that at the time of the death of the said Charles P. Pottorff, he was a married man, and that Laura M. Charlton-Pottorff survived her said husband, and that in accordance with the terms of the will which the said Charles P. Pottorff left, Laura M. Charlton-Pottorff, his surviving spouse, be decreed the sole beneficiary of the deceased under said will, and that she be entitled to all of the money and property belonging to said estate. The lower court found in favor of the construction of the will placed upon it by the administrator with the will annexed, and ordered that the administrator with the will annexed, after paying all indebtedness of the said estate and costs of administration, should turn over to the said Laura M. Pottorff, as surviving spouse of the deceased, all property belonging to the said estate. And from said order of the court an appeal has been perfected to this court.

There is no question in this record that Charles P. Pottorff, the decedent, was married to Laura M. Charlton in 1922 at Waukegan, Illinois; the marriage being performed by a pastor of the Central Christian Church of Waukegan. For some reason or other the marriage was not made public; but certain intimate friends of both parties were told about the marriage. In fact, the brother of Charles P. Pottorff, and his wife, were witnesses to the marriage. The decedent lived and worked in Iowa, while his wife, Laura M. Pottorff, worked in Utah. The reason given in the record why they did not live together was that Laura M. Pottorff had an invalid mother that she had to take care of. They visited each other at different times; Laura Pottorff generally traveling on a pass which the decedent secured for her as an employee of the railroad company. During the period of time that they were married they did not seem to bother each other very much or spend very much time together. The exact reason for this is not set out in the record, but it seems to us that is immaterial. There can be no question in the record but that they were man and wife at the time the decedent died.

The decedent's mother was 84 years of age and he resided with her and took care of her during his lifetime. The undisputed evidence of the case shows that the decedent left his mother an insurance policy in the amount of $ 2,000. The record also shows that he left insurance in the amount of $ 9,000 to his wife.

The clause in the will of Charles P. Pottorff, in dispute, reads as follows:

"All Property or moneys That I may have at my Death be willed to my Mother Mrs. Mary E. Pottorff Providing she is Living at that time if not then be Divided Equally Between my Nieces & Nephews But in Case I shall be married at that time will Revert to my wife and children should there be any."

The question that is before this court is the interpretation of this section of the will. The will of the testator in the case at bar was in the testator's own handwriting; was written by himself. It is therefore the work of a layman, and, while no direct evidence of the skill of the testator is shown, the will itself is sufficient evidence to indicate that the testator was unskilled and unlearned in the use of technical terms.

This court has laid down certain rules governing the construction of wills. In the case of Buchanan v. Hunter, 166 Iowa 663, at page 668, 148 N.W. 881, 882, the court said:

"It is a cardinal principle of testamentary construction that the court reads the will of a testator as a whole, each provision thereof in the light of all the other provisions, and ascertains, if practicable, the testator's intent, and if such ascertained intent be lawful it will be respected and given effect accordingly."

Again this court said in the case of ...