In re Finch's Estate

Citation239 Iowa 1069,32 N.W.2d 819
Decision Date15 June 1948
Docket NumberNo. 47182.,47182.
PartiesIn re FINCH'S ESTATE.
CourtUnited States State Supreme Court of Iowa

239 Iowa 1069
32 N.W.2d 819

In re FINCH'S ESTATE.

No. 47182.

Supreme Court of Iowa.

June 15, 1948.


Appeal from District Court, Polk County; Tom K. Morrow, Judge.

An action in probate to construe the will of Bertha D. Finch, tried to the court by ordinary proceedings. The executor of the will petitioned the court for a construction of the instrument. The main issue is whether the devise to Daniel M. Finch, husband of testatrix, who predeceased the latter, of ‘his distributive share’ of his wife's property passed to his two sons as heirs, under section 633.16, Code 1946, commonly called the anti-lapse, or nonlapse statute, or passed to collateral heirs of the testatrix, as devisees under the residuary clause of the will. The court held against the latter and they appeal. The heirs of Daniel M. Finch cross-appeal from the judgment of the court granting them but an undivided one-third interest in all of the estate, real and personal, under Code section 636.5, instead of awarding them $7500 after payment of debts and expenses of administration, and one half of the residue of the estate, under Code section 636.32. The judgments are affirmed on both appeals.

[32 N.W.2d 820]

Bredshaw, Fowler, Proctor & Fairgrave, of Des Moines, for Jesse D. Griffith and John N. D. Griffith, appellants and cross-appellees.

Brammer, Brody, Charlton, Parker & Roberts of Des Moines, for Simon Carey, Hetta Carey Conway, Elizabeth Carey Vargas and Belle Carey McClure, appellants and cross-appellees.


Miller, Davis, Hise & Howland, Howe, & Howe and Joseph Petosa, all of Des Moines, for Daniel O. Finch and Paul R. Finch, appellees and cross-appellants.

BLISS, Justice.

The cause was submitted on the pleadings and a stipulation of facts. While none of the facts were disputed certain of them were objected to as irrelevant. It appears therefrom that: Bertha D. Finch, 88, died April 10, 1946 a widow without children, natural or adopted, or other lineal descendants, leaving a last will dated April 9, 1942, and a codicil thereto dated December 15, 1945, both of which were admitted to probate on May 7, 1946; that in 1896 Bertha D. Finch, a spinster, married Daniel M. Finch, a widower with two sons, Paul R., born in 1885, and Daniel O., born in 1887, who are his only heirs; that the marriage relation continued until the death of the husband, Daniel M. Finch, 88, on December 31, 1945, without issue; that his will bearing date of January 9, 1925, naming Bertha D. Finch as his sole beneficiary thereunder, was probated and administered upon in Polk County, Iowa; that Jesse D. Griffith, John N. D. Griffith, Simon Carey, Hetta Carey Conway and Dewey Carey were the only nephews and niece of Bertha D. Finch, and the only sons and daughter of her own sisters at the time of the execution of her will; that Dewey Carey died before the testatrix, survived by his only children, Elizabeth Carey Vargas and Belle Carey McClure, who with the said Jesse D. Griffith, Simon Carey and Hetta Carey Conway are the residuary devisees and beneficiaries under the will of Bertha D. Finch; that the value of the net estate of the testatrix is approximately $100,000 of which $60,000 represents personalty and $40,000, real assets; and that the testatrix never remarried.

Those, who are appellants in this court, offered in the trial court the court file, Exhibit ‘A’, in the estate of Daniel M. Finch. The appellees, Paul R., and Daniel O., Finch, while admitting the authenticity of the file, objected to its admission as incompetent, irrelevant and immaterial to any issue under the pleadings or to the questions of law presented thereby. The same objection was made by them to the offer of Exhibit ‘B’, the court file in the estate of Bertha D. Finch, except the pleadings in this proceeding and the will and codicil.

It was stipulated, subject to objection, that the relations between Bertha D. Finch and her nieces and nephews were always pleasant, cordial and affectionate, and that they frequently visited in the home of the testatrix, and she and her husband Daniel, about the year 1942, were guests for two or three weeks in the home of Hetta Carey Conway in California. It was also stipulated, subject to objection, that substantially all of the estate of the testatrix, except the net amount of about $1600 which she received from the estate of her husband, came to her through inheritance from her mother, Mrs. Hetta Dewey. To all of these offers, the appellees objected for the reason that such facts were wholly incompetent, irrelevant and immaterial under the issues, and had no proper place in the record and no bearing upon any questions of law for decision by the court; that the contrary intent which the residuary devisees were undertaking to show to avoid the effect of section 633.16 of the 1946 Code, must, by the terms of the statute, be manifest from the terms of the will, and that surrounding circumstances such as stipulated and offered had no bearing on the issue presented as to whether or not such contrary intent was manifest under the terms of the will, as specified by said statute.

It was further stipulated that the proceeding was to be tried and determined as an ordinary proceeding in probate, and that the burden was upon the residuary devisees and beneficiaries, and that rulings upon objections would be reserved until final decision of the case.

[32 N.W.2d 821]

The will of the testatrix, after stating the revocation of any prior wills, in substance provided:

‘1. I give, devise and bequeath to my husband, Daniel M. Finch, his distributive share of my property as provided by the laws of Iowa.

‘2. I give, devise and bequeath to my great nieces * * * (naming six of them) the sum of $100.00 each.

‘3. I give, devise and bequeath to Valley Savings Bank, of DesMoines, Iowa, as Trustee all the rest, residue and remainder of my property of every kind and character, whether real, personal or mixed, and wherever situated, for the following purposes: Said trustee shall take and hold said property, invest and reinvest * * * and do whatever is required for the protection and preservation of the trust property.’

4, 5, 6. Provide in substance that the trust shall continue as long as Daniel M. Finch shall live, and terminate at his death, during which period the Trustee ‘shall pay to my husband, Daniel M. Finch, at such times as he shall require, all of the net income from the trust property remaining after the payment of taxes, insurance premiums, and other operating costs of the trust’, and ‘whenever in the opinion of the trustee, * * *, Daniel M. Finch, shall need any sum in addition to the net income to provide him with a comfortable living, said Trustee shall pay him such additional sums from the principal or corpus of the trust property.’

7. Provided for reports by the Trustee to the court.

‘8. At the death of my husband, Daniel M. Finch, all the property in the hands of said Trustee, I give, devise and bequeath to all of my nephews and niece, that is the sons and daughter of my own sisters, then living, to be divided among them share and share alike, and such division shall be made per capita and not per stirpes. In the event that any of my nephews and niece shall not survive me, then the share in my property herein provided for such nephew or niece shall go to the heirs of said nephew or niece.’

On December 15, 1945, the testatrix executed a codicil to said will providing: ‘1. My nephew, Dewey Carey, having died since the execution of my said will, it is my will that the devise and bequest of said will to said Dewey Carey, as one of my nephews, shall go to his, the said Dewey Carey's daughters, to be divided between them equally.

‘2. All provisions of said will shall remain in full force and effect except as modified by this codicil.’

After the probate of the will and codicil and the qualification of the executor, the latter filed an application setting out the provisions of the will, and stating that questions had been raised as to its construction, and asking for an order fixing the time and notice for a hearing thereon. The sons of Daniel M. Finch, deceased, filed an answer admitting the allegations of the application, and a cross-petition alleging that they were the only heirs of the devisee, Daniel M. Finch, and under section 633.16, Code 1946, identical with section 11861, Code of 1939, and under the terms of the will, they were entitled to the property devised to their father in paragraph 1 of the will, in the amounts fixed by the section 636.32, Code 1946, identical with section 12017, Code 1939, to wit, the first $7500 of the estate of the testatrix, after payment of debts and expense of administration, and one half of the remainder of the estate.

The residuary devisees and beneficiaries under the will filed answers admitting the allegations of the application of the executor, and also filed cross-petitions thereto and answers to the cross-petition of the heirs of Daniel M. Finch, deceased. These cross-petitions and answers, in substance, allege the stipulated facts, but allege also that it was the intention of the testatrix that the devise to her husband in the first paragraph of the will was contingent upon his surviving her, and that it became a nullity when he predeceased her, and that his heirs did not inherit the devise under Code section 633.16, since a contrary intent was manifest from the terms of her will, and that nothing passed to them under either section 636.5 or section 636.32 of the 1946 Code.

[32 N.W.2d 822]

Paul R. and Daniel O. Finch, by replies, reaffirmed the allegations in their cross-petition to the executor's application, and denied all allegations in the cross-petitions and answers of the residuary devisees, contrary thereto.

After argument orally and in writing the cause was taken under advisement by the court, and on August 22, 1947, the court entered of record its rulings on evidence, findings of fact, conclusions of law, and judgment. It sustained all objections...

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