In re Proestler's Will

• Decision Date: 27 October 1942
• Docket Number: 46070.
• Citation: 5 N.W.2d 922,232 Iowa 640
• Parties: In re PROESTLER'S WILL (two cases). GRABBE v. ST. VINCENT'S HOME OF DAVENPORT et al.
• Court: Iowa Supreme Court

5 N.W.2d 922

232 Iowa 640

In re PROESTLER'S WILL (two cases).

GRABBE v. ST. VINCENT'S HOME OF DAVENPORT et al.

No. 46070.

Supreme Court of Iowa

October 27, 1942

John A. Hornby and Chamberlin & Chamberlin, all of Davenport, for appellant.

Young & Williams, of Omaha, Neb., Louis Shulman, of Iowa City and Bollinger & Donegan and J. C. Hall, all of Davenport for appellees.

MILLER Justice.

This is the second appeal to this court herein. For our decision on the first appeal, see In re Proestler's Will, 227 Iowa 895 289 N.W. 436. The general background of this litigation is there set forth in considerable detail. To present the question now before us, it is necessary to repeat some of the facts therein set forth. Briefly, the facts material to this appeal are as follows.

Henry T. Proestler died July 4, 1919, leaving his widow, Mathilde B. Proestler, but no children, surviving him. His will was admitted to probate September 11, 1919. It provided for the payment of his debts and funeral expenses, made a number of bequests, following which, Item 13 of the will provided as follows: "All the rest, residue and remainder of the property, real, personal or mixed, of which I die seized or possessed, or to which I may be entitled, I give, devise and bequeath to Matilda B. Proestler and William Heuer in trust for the following uses and purposes: I direct that the net income from this trust fund shall be paid to my wife, Matilda B. Proestler, during her lifetime. I direct that my wife, Matilda B. Proestler, shall have the right to dispose by will of Twenty Thousand ($20,000.00) Dollars of said trust fund. All the rest, residue and remainder of said trust fund, after the death of my wife, Matilda B. Proestler, I give, devise and bequeath as follows:" (Following are set forth a number of bequests for the disposition of said trust fund.)

On September 15, 1919, the widow filed an election to take under the will and, with William Heuer, qualified as executor. The executors' final report was approved and the executors discharged January 22, 1921. The trustees named in the will carried out the provisions of the trust. On October 26, 1935, the widow died testate. Her will was admitted to probate and provides as follows:

"I, Mathilde B. Proestler, of Davenport, Scott County, Iowa, being of sound and disposing mind and memory, do hereby make, publish and declare the following as and for my Last Will and Testament, hereby revoking all former Wills.

"I. It is my will that all my just debts be first paid out of my Estate.

"II. All the rest, residue and remainder of my Estate of whatever kind and wherever situated, I will, devise and bequeath to my nephew, Werner H. Grabbe, with the request, however, that the income derived therefrom be used for the benefit, during her lifetime, of my sister, Christiane Hensen.

"III. I nominate, constitute and appoint my said Nephew, Werner H. Grabbe, Executor of this my Last Will and Testament, and exempt him from giving any bond, and I hereby grant and delegate to him as Executor full power and authority to sell and convey, mortgage or otherwise encumber, any real or personal property, should he deem it advisable, and to do any and all things as freely and fully as I myself might do, were I living, without the necessity of first obtaining an Order of Court.

"In Testimony Whereof, I have hereunto set my hand at Davenport, Iowa, this 13th day of February, A.D.1933.

"(Signed) Mathilde B. Proestler."

On March 28, 1937, Paul A. Tornquist, trustee under the will of Henry T. Proestler, appointed to succeed William Heuer, deceased, made application for instructions as to the distribution of certain funds in the trust estate, asserting among other things as follows: "That this Trustee is unable to determine whether or not the said Mathilde B. Proestler by her will did dispose of Twenty Thousand ($20,000.00) Dollars of said trust fund. Consequently, this Trustee is unable to determine how the money should be distributed which he has on hand ready for distribution." Various petitions of intervention were filed. One of the interveners, Werner H. Grabbe, the sole legatee under the will of Mathilde B. Proestler, asserted "that said Mathilde B. Proestler intended by the terms of her said Will to devise and bequeath the said Twenty Thousand ($20,000.00) Dollars to this Intervenor and that by the terms of her said Will the said Twenty Thousand ($20,000.00) Dollars was so devised and bequeathed to him." Grabbe also moved to transfer the cause to equity. This motion was sustained and thereafter an appeal was taken to this court, resulting in the decision heretofore referred to. 227 Iowa 895, 289 N.W. 436. We there held that the order transferring the cause to equity was not resisted in time and remanded the cause for trial.

Pursuant to the foregoing, the trial has now been had, in the course of which, oral testimony was offered for the purpose of showing that Mathilde B. Proestler intended by the terms of her will to devise and bequeath to Werner H. Grabbe the $20,000 referred to in her husband's will. Timely objection was interposed to the competency of such testimony. At the close of the trial, the court made the following findings:

"That there is no ambiguity in the will of Mathilde B. Proestler; nor a word nor an expression of doubtful or uncertain meaning; and hence no evidence is necessary or admissible, to clear up any doubt, or to show any surrounding facts or circumstances, or to explain or make more certain any of the wording contained in her said will.

"That the power of appointment, the right of disposal of $20,000.00 of the trust fund given to her under the provisions of the will of Henry T. Proestler, deceased, is not, and was not exercised by the will of Mathilde B. Proestler, and there is nothing in the language of her will to show that she intended to exercise it."

Pursuant to the foregoing, the decree determined "that Paul A. Tornquist, Trustee under the Will of Henry T. Proestler, deceased, be and is hereby ordered and directed, as to all the moneys now on hand in said trust and all that may hereafter be on hand and ready for distribution, to distribute the same in strict accord with the terms and provisions of the will of said Henry T. Proestler, deceased, exactly in the manner the same should and would be distributed if there had been no provision in said will giving the widow of said testator the power of disposal of $20,000.00 of said trust estate." The intervener, Werner H. Grabbe, has appealed to this court.

I. Appellant's first proposition is that the court erred in holding that oral testimony was not admissible as a basis for the interpretation of Mrs. Proestler's will. Quite a number of authorities, particularly decisions of this court, are cited by both sides. It would seem to be unnecessary for us to review such authorities as the question appears to be foreclosed by the recent decisions of this court in reference to exactly the same kind of a will. In re Schroeder's Estate, 228 Iowa 1198, 293 N.W. 492; Anderson v. Meier, 227 Iowa 38, 287 N.W. 250. The will that was there considered by us is set forth in full at pages 1204 and 1205 of 228 Iowa, at page 495 of 293 N.W. In passing upon such will, we state, in 227 Iowa at page 41, 287 N.W. at page 251, as follows: "The wording of Dr. Schroeder's will admits of but one meaning, and is expressed in such terms as to be clear and certain to any person. It is short, providing first for payment of debts and funeral expenses; second, devising and bequeathing to his wife all his estate; and third, appointing her executrix. It may be said also that his wife's will is plain and unambiguous. Such wills need no aid from the courts in construing their provisions, and this may be called the universal rule."

The foregoing language is quoted with approval and followed in the later decision wherein we held that, since Dr. Schroeder's will was in no way ambiguous, oral testimony was not admissible for the purpose of establishing how the will should be construed or interpreted. The decision of the trial court herein is strictly in accord with the pronouncements there made by this court. The oral testimony offered herein was properly rejected. There is no merit in appellant's first proposition.

II. Appellant's second proposition asserts that Mrs. Proestler's will should be interpreted to the effect that the residuary bequest to appellant constituted an execution of the power to dispose of the $20,000 referred to in her husband's will. We find no merit in this contention.

Both parties concede, and our investigation confirms the fact, that there is no Iowa statute upon the precise question here presented for our decision. Such being the case, it is our duty to "recognize and enforce the rules and principles of the common law," unless "the principle sought to be applied is unsuitable to our own social or political conditions, or not in harmony with the policy and objects of our own peculiar institutions". Hastings v. Day, 151 Iowa 39, 41, 130 N.W. 134, 135, 34 L.R.A.,N.S., 1021, Ann.Cas.1913A, 214, and cases cited therein.

The general common law principle is set forth in paragraph 343 of the Restatement of the Law of Property (Vol. 3, page 1913) as follows: "When the donee by his will makes...