In re Hellman's Estate
| Decision Date | 17 March 1936 |
| Docket Number | 43237. |
| Parties | In re HELLMAN'S ESTATE. |
| Court | Iowa Supreme Court |
Appeal from District Court, Webster County; O. J. Henderson, Judge.
It is the claim of appellants that by the will of Anna C. Hellman a precatory trust was created in their favor, and that Frank Hellman, who was the husband of Anna C. Hellman and executor of her estate, by the provisions of her will took and held certain property as trustee, and that it is the duty of the executors of the estate of said Frank Hellman to account to appellants for such trust fund. Two separate claims were filed against the estate of Frank Hellman, one by the appellant Olson, and another by the other named appellants jointly, which were heard together on the same evidence and stipulation of facts. The executors resisted said claims alleging: (1) That no trust was created; (2) no evidence by which the court could identify the subject-matter of the alleged trust; (3) that the matter had been once adjudicated (4) statute of limitations. The matter was heard in probate by the court without a jury. The court in construing the will of Anna C. Hellman found that no trust was created, but that the husband took an estate in fee, and dismissed the claims of appellants, and they have appealed.
Affirmed.
Ed. C Tschudi, of Dubuque, and B. J. Price, of Fort Dodge, for appellants.
John E. Mulroney and D. M. Kelleher, both of Fort Dodge, for appellees.
On May 4, 1913, Anna C. Hellman executed a will, and, after making numerous specific bequests, concludes with a residuary clause as follows:
On June 22, 1913, she executed a codicil; that part thereof which is material to the issues in this case being contained in the following paragraph:
Anna C. Hellman died on or about July 6, 1913, leaving her husband, Frank Hellman, surviving. The will and codicil were duly admitted to probate, and the husband qualified as executor on September 11, 1913, and on the 12th day of September, 1913, gave notice of his appointment and filed proof thereof as provided by law. The first contest over this will was between the executor and the state treasurer as to whether or not under the provisions of paragraph 9 any part of this estate passed to the sisters as collateral heirs and was subject to succession tax. In order to determine this, the court of necessity was compelled to construe and interpret paragraph 9 of this will. The issue was clearly drawn and decided adversely to the treasurer's contention; the court holding that the sisters took nothing and hence no tax was due.
Frank Hellman died testate on or about the 6th of September, 1933, and in his will, disregarding the wishes of his wife, made no provision for the persons named in paragraph 9 of the will of Anna C. Hellman. In due time appellants filed their claims in controversy, alleging that the sum of $12,000, which was included in a total of $26,000 which Frank Hellman received from the estate of his wife, was money inherited by her from her mother, and that by the provisions of her last will and testament and codicil such portion passed to Frank Hellman in trust for said appellants, and they pray for an accounting by the executors of the estate of Frank Hellman of said $12,000, together with the additions and increments thereof as a trust fund for the use and benefit of said claimants. These claims were first attacked by demurrer, setting up that by the provisions of the will, a copy of which was attached to the claims, no trust was created, the language being merely the expression of a wish or desire, or precatory in character and repugnant to the other provisions of the will. This demurrer was submitted to the court, and the court's ruling appears in the abstract, and this paragraph 9 and codicil were again construed, and the demurrer was overruled; the court holding that the husband did not take an absolute estate, but, as to the portion inherited by her from her mother, the language in paragraph 9, considered in connection with paragraph 2 of the codicil, amounted to a bequest to the sisters. Thereafter the executors of the estate of Frank Hellman filed their answer, and the case was tried to the court upon a stipulation of facts, and the court, construing the same paragraph 9, held that by the first sentence thereof an absolute estate was given to the husband, and that all the language following was precatory in character, and expressive of nothing more than the wish or desire of the wife as to how the husband should distribute that portion of the estate bequeathed to him which she had inherited from her mother, and in no way limited the absolute estate to the husband, and that the husband was at liberty to disregard the wishes of his wife if he saw fit.
Hence we see that three times the district court has construed the provisions of this will, different judges presiding, with the results heretofore indicated. The parties are represented in this court by able counsel; on the one hand appellants contending that there was a trust created, and on the other appellees contending there was an absolute estate to the husband. Counsel on both sides, sincere in their contentions, have cited authority to this court apparently supporting their respective contentions. Under these circumstances, to say that the language of this will is clear and free from doubt as to its meaning would be somewhat presumptuous.
Precedents are of little value in matters involving the construction of wills. This is due to the fact that in all cases of this character the intention of the testator must govern, and, in expressing their intention, different individuals use different language. It is because of this variance in expression that ambiguity arises, and resort to construction is compelled in order to arrive at the testator's intention. There are many well-known canons of construction which have often been stated and need not be again repeated, but see Phillips v. Phillips, 217 Iowa 374, 251 N.W. 511; In re Estate of Thomas (Iowa) 261 N.W. 622; In re Estate of Flannery (Iowa) 264 N.W. 68; In re Will of Richter, 212 Iowa 38, 234 N.W. 285; Guilford v. Gardner, 180 Iowa 1210, 162 N.W. 261.
That the testatrix used apt language to describe a fee-simple title or absolute estate in the first sentence of paragraph 9 cannot be questioned. She says: " All the balance of my property of all kinds I give, devise and bequeath to my beloved husband, Frank Hellman, and appoint him executor of this my last will without bond." The old familiar stock phrases of the common law, such as " in fee simple," " absolutely," " to have and to hold forever," do not appear, but words of this character are unnecessary in conveying the fee-simple title. All that follows this statement is preceded by the words, " It is my wish," and it is in the language following the word " wish" that we must look for words of limitation on the previous unlimited devise and bequest to the husband. It will be noticed that there are no words of gift or grant to her sisters in this paragraph.
Stripped of the part that applies to the husband's bequest, it reads as follows: " It is my wish * * * at his death that portion of my estate herein given him which was mine by inheritance and additions thereto shall be by my husband divided equally among my four sisters," naming them. Desiring for some reason to change her expressed wish in reference to her sister, Emily, referred to also as Sister Cassilda, she makes a codicil, in which she says that she revokes " fully and absolutely the bequest and devise of Clause Nine to my sister Emily, now known as Sister Cassilda and no part of my estate shall go to her." So this eliminates Sister Cassilda.
She then goes on to say that " One Thousand Dollars of an undivided fourth of the bequests or share of my property that in Clause Nine I have requested my husband at his death to distribute is hereby given to Lewis H. Olson and the balance of said one-fourth I ask my husband to distribute equally to my sisters Mrs. Tschudi, Mrs. Zwack and Mrs. Baumhover in addition to the amounts already named for them in said Clause Nine of my said will." If you stop at this point, there might be found a limitation in favor of Lewis H. Olson as to $1,000 in these words, " is hereby given to Lewis H. Olson." But, to make sure that nothing in her codicil should...
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