In re Fintel's Estate

• Decision Date: 06 April 1948
• Docket Number: 47171.
• Citation: 31 N.W.2d 892,239 Iowa 475
• Parties: In re FINTEL'S ESTATE. FINTEL et al. v. BEARD et al.
• Court: Iowa Supreme Court

31 N.W.2d 892

239 Iowa 475

In re FINTEL'S ESTATE.

FINTEL et al. v. BEARD et al.

No. 47171.

Supreme Court of Iowa

April 6, 1948

Hall & Ewalt, of Indianola, for appellants.

E C. Erwin and Matthew Westrate, both of Muscatine, for appellees.

HAYS Justice.

Henry F Fintel died testate in 1936, leaving surviving him two sons Edward Charles Fintel, Homer Addicks Fintel; two daughters Alice Eva Fintel, Lillian Floy Fintel, and two grandsons, Elmer Hugh Beard and Wilbur E. Beard, the children of a deceased daughter, Florence May Beard. This daughter died prior to the execution of the will in 1930. Wilbur E. Beard died in 1937, a minor, intestate and unmarried, leaving surviving him as his sole heir at law, C. W. Beard. Edward Charles Fintel died intestate in 1942, leaving surviving him a daughter Frances Fintel Armbrister, Alice Eva Fintel died in 1945, unmarried, intestate and without descendants.

Under testator's will the personal property is disposed of by Article II, thereof. This property has been distributed and is not involved in this case. The real estate is disposed of under Article III of the will and it is with this property that we are concerned. Homer Addicks Fintel, as a trustee, and as an individual, and Frances Fintel Armbrister, as petitioners, claim that they, together with Lillian Floy Fintel are the owners of the real estate. Elmer Hugh Beard and C. W. Beard, as respondents, make claim to a portion thereof. In order to make a distribution, the trial court was asked to construe the will. After a hearing, it found for petitioners and from a judgment accordingly, the respondents appeal.

The material portions of the will are as follows:

'Article II. Any personal property * * * may be sold * * *. The net proceeds to be divided as follows: The share of my personal estate that would have fallen to my daughter, Florence May Beard, deceased, shall be held in trust until her sons, Elmer Hugh Beard and Wilbur E. Beard attain the age of twenty-one years, and be divided equally among them. The remaining four shares is to be divided equally among my sons, Edward Charles Fintel, Homer Addicks Fintel and my daughters, Alice Eva Fintel and Lillian Floy Fintel.

'Article III. I direct that the net income of my farm, (here described), shall be equally divided among my children named in Article II.

'Ten years after my deceased the above described lands may be sold * * *, and the money divided equally among my children named in Article II.

'Should any of my children die before the final distribution of my estate, his or her share shall be given to the descendants of such deceased legatee, if there be any, otherwise to my children named in Article II in equal amounts.

'Any attempt by any one to change or break this will shall cause such person to forfeit all rights and interest in my estate and shall automatically disinherit such person.

'If in the judgment of my executors it will be to the best interests of Elmer Hugh Beard and Wilbur E. Beard and Alice Eva Fintel and Lillian Floy Fintel to hold their shares in trust, he is authorized to do so.'

Two errors are assigned on this appeal. (1) The court erred in its determination of the meaning of the will. (2) It was error to receive extrinsic evidence as to testator's intention. While in the construing of a will, the particular words of the will being examined must govern, certain well recognized rules of construction are applicable in all such cases. In the recent case of In re Estate of Schmitz, 231 Iowa 1178, 1181, 3 N.W.2d 512, 515, quoting from Boehm v. Rohlfs, 224 Iowa 226, 232, 276 N.W. 105, we say: 'In construing a will, the first consideration is to ascertain, if possible, the intention of the testator, and to give effect to such intention if lawful and not against public policy. This must be ascertained from the provisions of the will itself where the language is plain and unambiguous. (citing cases) * * *. But where the language is more or less obscure, or the meaning is hidden and there exists what is known as a latent ambiguity, parol evidence may be resorted to for the purpose of making intelligible in the will that which cannot without its aid be understood or resolving a doubtful interpretation. * * *' See also, Layton v. Tucker, 237 Iowa 623, 23 N.W.2d 297; In re Eason's Estate, Iowa, 26 N.W.2d 103; McClintock v. Smith, Iowa, 29 N.W.2d 248. The rule as to the intention of the testator has reference to intention at the time of the execution of the will, interpreted in the light of the facts and circumstances existing at the time the will is made. In re Estate of Keeler, 225 Iowa 1349, 282 N.W. 362. In construing the will, not single sections or paragraphs, but the entire instrument must be construed and considered together in determining the testator's intention. Anderson v. Anderson, 181 Iowa 578, 164 N.W. 1042; In re Estate of Huston, 224 Iowa 420, 275 N.W. 149. Where there are no words of grant or gift in a will, but only a direction for a division of the estate at a future time, such direction should be construed as vesting an interest only when such time arrives. McClain v. Capper, 98 Iowa 145, 67 N.W. 102.

By what would be paragraph 3 of Article III of the will as above set forth, if numbered, it is provided: 'Should any of my children die before the final distribution of my estate, his or her share shall be given to the descendants of such deceased legatee, if any there be, * * *.' (Italics added.) In no other provision of the will is there a word of gift or grant, only that there be a division. While the will speaks as of the date of the death of testator, the above quoted provision, taken in connection with what would be paragraph 2 of Article III, and which is as follows: 'Ten years after my decease * * * the lands may be sold * * * and the money divided equally among my children named in Article II' (Italics added), clearly shows that the parties ultimately to receive the proceeds of the land, must be determined as of the time of final distribution, which is now.

Appellants contend that by using the term 'my children named in Article II', and Florence May Beard, although dead, being named, she is a devisee. That under Section 633.16, Code of 1946, they take directly under the will. Section 633.16 provides: 'If a devisee die before the testator, his heirs shall inherit the property devised to him, unless from the terms of the will a contrary intent is manifest.' The purpose of this statute is to prevent intestacy. In the case of Gilbert v. Gilbert, 127 Iowa 568, 103 N.W. 789, it is held that where the will contemplates that on the death of the devisee named, prior to the death of the testator, the property devised should be otherwise disposed of, this is construed as a clear intention that the antilapse statute, (633.16) shall not apply. Paragraph 3, Article III, above, says, 'Should any of my children die before the final distribution of my estate, his or her share shall be given to the descendants of such deceased legatee, if there be any. * * *.' Assuming Florence May Beard, but not so holding, to be a devisee; under the clear wording of the will. Section 633.16 does not apply.

It is also argued that the term 'children' includes 'grandchildren.' This is true in some jurisdictions. This court holds otherwise, unless from the context of the will such appears to be the plain intent of the testator. See Parish v. Welton, 194 Iowa 1274, 190 N.W. 947; Redinbaugh v. Redinbaugh, 199 Iowa 1053, 203 N.W. 246; Downing v. Nicholson, 115 Iowa 493, 88 N.W. 1064, 91 Am.St.Rep. 175. In both of the foregoing cases, the gift was to a class, such as 'children' or 'nephews and nieces', without naming them. However in the case of In re Carter, 203 Iowa 603, 213 N.W. 392, we held that when the devise is to a class and the persons in that class are individually named, the devise is presumably a devise to each individual and the death of a devisee prior to the death of the testator does not cause that devise to lapse. Friederichs v. Friederichs, 205 Iowa 505, 218 N.W. 271, holds that a devise to one whom the testator knows to be dead when the will is executed, does not lapse on the death of the testator, the will not manifesting a contrary intent. See also, In re Everett's Estate, Iowa, 28 N.W.2d 21. In the instant will, the term 'my children' used in Article III refers to the class named individually in Article II and but for paragraph 3 of Article III, the rule stated in the Carter case, supra, might be applicable.

Reading the will as a whole, testator in substance says, when the farm is sold ten years after my death, the proceeds therefrom shall be divided among my children, naming them, and if any die prior to that time, his or her share shall be given his or her descendants, then living. An almost identical situation has been before this court, except that in the instant case testator names the group individually in Article II, while in the case of Anderson v. Wilson, 155 Iowa 415, 136 N.W. 134, a group was named merely as a group. In that case, the will gave a life estate to his brother and provided that at his death one half interest should go to his brothers of the half-blood equally and in case any are then deceased his share shall go to his children equally. The will further provided that if the life beneficiary did not survive testator, he devised one half to his brothers of the half-blood equally and in case any are then deceased his share to go to his children equally. At the time the will was executed one brother of the half-blood was dead, leaving a son surviving. In 155 Iowa at page 420, 421, 136 N.W. at page 136, the court said 'But the proposition of the appellees is, * * * , that the context of the words of the devise taken in connection...