In re Roberts' Estate

• Citation: 35 N.W.2d 756,240 Iowa 160
• Decision Date: 08 February 1949
• Docket Number: 47383.
• Parties: In re ROBERTS' ESTATE.
• Court: Iowa Supreme Court

35 N.W.2d 756

240 Iowa 160

In re ROBERTS' ESTATE.

No. 47383.

Supreme Court of Iowa

February 8, 1949

Abramson and Myers, of Des Moines, and Downey Morris & Abrams, of Kansas City, Mo., for appellant.

Hammer & Mathias, of Newton, for appellee Guy L. Roberts.

OLIVER Justice.

Guy L Roberts, the trustee, is a cousin to Orville J. Roberts, the beneficiary. Guy is a lawyer. The will of Mary M. Roberts made in 1936, gave her estate to her daughter Clara Zang, and her son, Orville, absolutely. December 8, 1944, testatrix executed a codicil which modified the will as follows:

'2. It is my will that the name of Orville J. Roberts be entirely eliminated from my will as a Legatee, and that the name of Guy L. Roberts, as Trustee, be substituted in lieu thereof who shall hereinafter be referred to as 'trustee'.

'The said Trustee is to receive and manage all property, funds, and affairs in this Trust, with power to invest and re-invest the funds in such securities as in his discretion seems right and proper; to collect rents, issues and profits on such investments as they become due; and to accumulate the income and add to it to the corpus of the Trust; to pay all taxes and other expenses rightfully chargeable against said trust; to sue and be sued in the name of the trustee; and to perform any and all other acts necessary for the proper handling of said Trust.

'The Trustee may disburse all or any portion of the corpus of the Trust at any time or from time to time as in his discretion seems proper. Any amount distributed during the lifetime of my son, Orville J. Roberts, shall be for his use and benefit.

'The right of my son, Orville J. Roberts, to receive such income and principal shall not be anticipated, or assignable, or in any way applicable to the payment of his debts.

'The funds, if any, remaining in said Trust not otherwise distributed to my son, Orville J. Roberts, shall at his death, immediately vest in Margaret Clingan, and Lois Cox, my granddaughters.'

Testatrix died in 1945. Distribution of her estate was made in July, 1947. The trustee received Orville's portion, apparently about $5,500. In December, 1947, Orville made the application to terminate the trust. His daughters Margaret Clingan and Lois Cox, remaindermen in the trust estate, joined him in the application.

The application states: 'the sole intention of the testatrix in creating said trust was to protect said property and assets from an invasion by (Vera) the then wife of the applicant'; in September, 1944, Vera, with whom he was having marital difficulties, 'was threatening to strip him of his assets' including any anticipated inheritance from his mother; he consulted Guy L. Roberts and at Guy's suggestion and dictation requested his mother in writing to will his share of her estate in trust; pursuant thereto Guy thereafter prepared the codicil which testatrix executed December 8, 1944; subsequently Vera and Orville were divorced and their property rights fully settled; that this fully accomplished the purpose of the trust and it should be terminated.

Orville testified he told Guy of Vera's threats and Guy said testatrix' will could be changed so Vera 'can't touch it', and Orville then wrote a letter to testatrix dictated by Guy and to be presented by Guy to testatrix. Guy testified testatrix had frequently discussed with him the matter of placing in trust Orville's portion of her estate and when Orville consulted him, he told Orville a program could be worked out if Orville would request testatrix to set up a trust for Orville's interest in the estate, that accordingly the letter was written to testatrix and the codicil was thereafter prepared by Guy 'in accordance with her dictates' and was executed by testatrix, that, 'It was made to protect the property against Orville's own weaknesses. The threat that Vera made to take the property was only one element.'

Clara Zang testified her mother said Orville had told her 'that they were going to get a divorce' and had written her (testatrix) 'he wanted her to fix his money to be secure for him' and that Guy had the letter. Over objections, on which rulings were reserved (the cause was tried in equity), Orville testified testatrix told him Guy had drawn a trust provision in her will and she had signed it, and that 'my money was safe'. 'I understood that at any time I wanted the money it would be presented to me, all or any part of it. That is the understanding I had with my mother.'

Orville was divorced from Vera in May, 1945. Although testatrix lived until November 29, 1945, she did not revoke or modify the trust provision of the codicil.

I. This is a protective trust in the nature of a spendthrift trust. Technically it is termed a discretionary trust because any and all payments to the beneficiary are discretionary with the trustee. Restatement of the Law, Trusts, § 155; 54 Am.Jur. 132, Trusts, § 162. Roorda v. Roorda, 230 Iowa 1103, 300 N.W. 294. Courts will not dissolve such trusts before the expiration of the term for which created, save in exceptional cases. Olsen v. Youngerman, 136 Iowa 404, 412, 113 N.W. 938.

Counsel for Orville contend the only purpose of the trust was protection from Vera. They argue testatrix knew of Orville's difficulties with Vera and Vera's threats and they rely upon testimony of statements or declarations by testatrix of her purpose and of her understanding as to the effect of the trust provision. In construing a testamentary trust the rules governing the construction of wills are to be applied. McClintock v. Smith, 238 Iowa 964, 967, 29 N.W.2d 248. 'Under these rules evidence of extrinsic circumstances is admissible, but ordinarily direct statements by the testator of his intention are not admissible.' Restatement of the Law, Trusts, § 4(c). Nor is extrinsic evidence admissible to vary, contradict or add to the terms of a will, or to show an intention of the testator different from that disclosed by the language of the will. 57 Am.Jur 674, Wi...