In re Johnson's Estate

• Decision Date: 16 December 1947
• Docket Number: 47147.
• Citation: 30 N.W.2d 164,238 Iowa 1221
• Parties: In re JOHNSON'S ESTATE. AMERICAN BIBLE SOC. et al. v. CAMERON et al.
• Court: Iowa Supreme Court

30 N.W.2d 164

238 Iowa 1221

In re JOHNSON'S ESTATE.

AMERICAN BIBLE SOC. et al. v. CAMERON et al.

No. 47147.

Supreme Court of Iowa

December 16, 1947

Hart & Hart, of Waukon, for appellants.

H Haehlen, of Waukon, for James S. Cameron, executor of estate of Agnetta Johnson, appellee.

Arthur H. Jacobson, of Waukon, for Lucille Johnson, beneficiary appellee.

HALE Justice.

This appeal involves the ruling of the district court on objections to the final report of the executor of the will of Agnetta Johnson. The estate was solvent and the executor, in paragraph 6 of his final report, asked the direction of the court to designate whether or not such executor should have the right to pay a $3000 bequest to Lucille Johnson in cash or whether he should be compelled to invest $2000 of said amount in the annuities therein stated. He referred to the provision of the will and stated that it was his belief that such a provision merely created a wish or suggestion on the part of the testatrix as to how the $3000 bequest should be paid, but the devisee would have the right to elect whether she wanted the sum in cash or whether she wanted part in cash and the balance in annuities as set out in the will; that the executor would have the right to designate how the sum of $3000 should be paid and that Lucille Johnson has expressed a wish to receive such sum in cash; that unless the court otherwise orders such $3000 shall be paid instead of $1000 in cash and $2000 in the annuities.

To this paragraph 6 of the final report the American Bible Society Baptist Ministers and Missionaries Benefit Board, Women's Baptist Home Mission Society, and Women's Baptist Foreign Mission Society filed their objections. The objections involved the construction of paragraph 5 of the will which is as follows:

'Par. 5. To my beloved daughter-in-law, Lucille Johnson, I will, devise and bequeath the sum of Three Thousand Dollars, payable as follows:

'1. One Thousand Dollars in cash;

'2. It is my further wish that the balance of said Three Thousand Dollars be invested by my executor for the benefit of Lucille Johnson as follows: Annuities in American Bible Society, Five Hundred Dollars; annuities in the Baptist Ministers and Missionaries Benefit Board, One Thousand Dollars; annuities in the Women's Baptist Home Mission Society, Two Hundred Fifty Dollars; annuities in the Women's Baptist Foreign Mission Society, Two Hundred Fifty Dollars.'

To these objections the executor and Lucille Johnson, the beneficiary, filed answers, and the objectors filed reply. The district court overruled the objections.

The only question therefore in this case is whether the executor shall be permitted to pay to the annuitant named the sum of $2000 in cash or shall invest in the annuities described in the will in the amounts therein specified? The district court held, as a conclusion of law, that the provision in paragraph 5 of the will as to the purchase of annuities should be construed as a suggestion only, and the court entered judgment that the bequest in the sum of $3000 be allowed to Lucille Johnson and authorized the executor to distribute such amount to her. From this ruling the objectors appeal.

I. The first assignment of error by appellants is that the court erred in holding that the use of the word 'wish' made the bequest merely precatory and a suggestion only. They argue that the terms 'wish' or 'desire' in a testamentary devise may, and often do, have force and effect of a specific direction. Citing Porter v. Tracey, 179 Iowa 1295, 1302, 162 N.W. 800; Canady v. Baysinger, 170 Iowa 414, 152 N.W. 562; Phelps v. Thomas, 194 Iowa 1078, 190 N.W. 399; Harrison v. Langfitt, 158 Iowa 479, 139 N.W. 1076; In re Estate of Ida F. Vail, 223 Iowa 551, 273 N.W. 107.

The general rule is laid down in 69 C.J. 79, section 1133:

'Where words of recommendation, request, desire, and the like are used in direct reference to the disposition of the testator's own property and show a clear intent to make such disposition without the intervention of any act by the first donee, they are ordinarily regarded as imperative rather than precatory, even though the testator declares his wish to be executed only on the happening of a contingency which may never happen; but, where the language is used by way of suggestion, advice, or desire, with a view to influence, but not to direct the discretion of the donee, the words are held to be precatory. * * * A wish directed to a beneficiary is generally regarded as precatory, unless clearly the words express the testator's intention to the contrary; where the words are addressed to an executor, they are regarded as mandatory; * * *.' Citing authorities. See, also, In re Lawrence's Estate, 1941, 17 Cal.2d 1, 108 P.2d 893. The cases cited support the contention of the appellant.

The appellee argues that the expression used in paragraph 5 of the will was precatory only, citing various authorities; among them Bills v. Bills, 80 Iowa 269, 45 N.W. 748, 8 L.R.A. 696, 20 Am.St.Rep. 418. The court holding, in that case, was that there was a repugnancy between the first clause, being a devise of real estate, and certain gifts thereafter including a residuary estate. It held to the old rule that a devise or bequest cannot be defeated or limited by a subsequent doubtful provision inferentially raising a limitation upon the prior devise or bequest. This case, however, was questioned in the case of Iimas v. Neidt, 101 Iowa 348, 70 N.W. 203, wherein the doctrine of Bills v. Bills, supra, was modified and a subsequent limitation held to be valid. There was a dissenting opinion. A concurring opinion therein says that the effect of our adherence to the rule indicated in the dissenting opinion as controlling has in particular cases operated to defeat plain testamentary intentions. Other cases cited are In re Estate of Edwards, 231 Iowa 71, 300 N.W. 673; Richards v. Richards, 155 Iowa 394, 136 N.W. 132; Bradford v. Martin, 199 Iowa 250, 201 N.W. 574. These various cases refer to repugnant provisons following an absolute bequest or devise. As we view it there are no repugnant provisions in the will we are considering. The bequest of $3000 is followed immediately and in the same paragraph by an explanation or direction as to how such bequest shall be disposed of by the executor. Division 2 in said paragraph 6 is in no sense repugnant to the bequest of $3000. It is rather a part or an explanation of the entire bequest. The paragraph apparently is intended to be, and should be, read as a whole. Other cases are cited mainly as to the rule to be applied in case of repugnancy between the first and subsequent provisions, which we find it unnecessary to review.

Our conclusion is that if the will shows that the testator intended definite direction, the use of the word 'wish' is not precatory, and we so hold. The clause directing the purchase of the annuities was a direction which was to be followed by the executor. Such direction is a part of the $3000 bequest. Testator left $3000 to be 'payable as follows:' $1000 cash, and then follows the direction to purchase annuities. The directions are to be read and construed together.

II. Appellees argue that the court was correct in holding that the provision relating to the annuities was so uncertain as to be impossible. As a conclusion of law the court so found, citing a definition credited to the supreme court, that 'an annuity is a yearly sum of money granted by one person to another in fee, for life or years, charging the grantor only.' The court continued:

'If testatrix meant in fact annuities, then the capital investment to produce the annuities set out would necessarily be a very large investment, more than is available in this estate. On the other hand, the sums referred to, if paid in annuities over a period of years, would be a sum greater than that provided for in the will, which names the total bequest of $3000.00.

'Again, on the other hand, if the intention was to grant the beneficiary only the accrued income on the $2,000.00, then the first specific bequest would be defeated. Neither does the will provide for the disposition of the principal sum after the income has been paid in case it were construed that the income plan was the intention of the testatrix.

'Paragraph 5 of the will in the first, or granting clause thereof, clearly provides for the bequest to beneficiary of $3,000. This bequest is definite and certain and an expression of intent and direction on the part of the testatrix. Subdivision two of said paragraph 5 is indefinite and may not be held to defeat the positive bequest provided for in the first or granting clause. Too, in the said subdivision the testatrix used the word 'wish,' which does not necessarily express direction and, considering the word in connection with the text of said paragraph, it is reasonale to construe it as a suggestion only, and the court so holds.'

We cannot agree with the reasoning or the conclusion of the court. Our opinion is that the $2000 was to be invested so as to produce an annual sum. That is, the investment should be $2000. For one reason, because the amount of the bequest is limited to $3000, of which $1000 is payable in cash. The balance means the $2000 as the will plainly provides. It is true that the word 'annuity' under the common law means a fixed sum payable at intervals, usually annually or at some other stated period, but, frequently is commonly spoken of as referring to the contract creating an income. In the strict legal sense the word, as used in the will, may not be an annuity, but there can be no doubt that as here used the term referred to the amount to be invested in an income-producing contract. The amount to be invested is limited to $2000,...