Jensen v. Nelson

• Decision Date: 27 July 1945
• Docket Number: 46714.
• Citation: 19 N.W.2d 596,236 Iowa 569
• Parties: JENSEN et al. v. NELSON et al.
• Court: Iowa Supreme Court

19 N.W.2d 596

236 Iowa 569

JENSEN et al. v. NELSON et al.

No. 46714.

Supreme Court of Iowa

July 27, 1945

Leonard L. Ryan, of Audubon, for plaintiffs.

Reynolds Meyers & Tan Creti, of Carroll, for defendants Wilma Nelson, Nona Grohe, Vera A. Scully, Lester E. Kness, Marvin E. Kness, Arnold Kness, a Minor, and Austin E. Kness Guardian of property of Arnold Kness.

L Dee Mallonee, of Audubon, and R. G. Howard, of Jefferson, for defendants Alice Schwab, Hope Anderson Truax, Mary Scott Nellie Kness, L. Dee Mallonee, and Wilson & Harris.

H. Wayne Black, Charles S. White, and Graham & Graham, all of Audubon, for defendant Audubon County, Iowa.

GARFIELD Justice.

A. R. Anderson, who lived on a farm about three miles from Audubon, died March 4, 1941, leaving no spouse, lineal descendant, parent, brother or sister. His only heirs were four nieces, three grandnieces, and three grandnephews. The will provides for legacies to them and they are also beneficiaries of the residuary estate. The net estate for distribution is about $52,000 in value. The will, duly probated, was made on February 10, 1937, and contains this provision:

'F. 17 1/2 per cent of my estate I hereby give to my executors to hold in trust for the following purpose, to wit, in the event that the County of Audubon shall construct and build a new courthouse in the City of Audubon within ten years after my death, then said amount shall by my executors be paid over to the County of Audubon to the proper officers and fund to aid in the construction of said courthouse. In the event, however, that the said county shall not construct a courthouse at Audubon within ten years after my death, then in that event said bequest shall lapse and become void and of no effect.'

I. The controversy over this provision has arisen because of the fact that Audubon County built a new courthouse in 1939, between the making of the will and testator's death. The heir-legatees, who are also beneficiaries of the residuary estate, contend in effect that Audubon County is not entitled to approximately $9100 claimed by it because the courthouse was built prematurely and not during the ten year period commencing with testator's death. Audubon County asserts, however, that since the new courthouse was completed before the expiration of the ten year period, it is entitled to the bequest. The trial court decided this part of the controversy in favor of Audubon County and the residuary legatees have appealed from this adjudication. We agree with the trial court.

In determining the meaning of Item F, we may properly take into consideration that the trust therein created is for a charitable purpose. Stuart v. City of Easton, 3 Cir., 74 F. 854, 21 C.C.A. 146, affirmed 170 U.S. 383, 18 S.Ct. 650, 42 L.Ed. 1078; 14 C.J.S., Charities, p. 442, § 13; 10 Am.Jur. 641, section 79; Annotation, 50 A.L.R. 593, 598. In ascertaining the meaning of a charitable trust, the language used is to be given a broad and liberal construction, favorable to its purpose. Charitable gifts are strongly favored by courts. In re Hagan's Will, 234 Iowa 1001, 1007, 14 N.W.2d 638, 641, 642, 152 A.L.R. 1296, and authorities cited.

It is well established, even where no charitable bequest is involved, that if any testamentary provision is open to two constructions, one of which would render it void or inoperative, and another which would render it valid, the latter is always to be taken and the former rejected. Porter v. Tracey, 179 Iowa 1295, 1300, 162 N.W. 800; 69 C.J. 88, 89, § 1146; 28 R.C.L. 207, section 167. This rule is particularly applicable where a charitable bequest is drawn in question. An analogous rule is also frequently applied to bequests to charity. If there are two meanings of a word, one of which will effectuate and the other defeat the testator's object, the court will select the former meaning. 10 Am.Jur. 659, section 102. See also In re Estate of Nugen, 223 Iowa 428, 440, 272 N.W. 638; Klumpert v. Vrieland, 142 Iowa 434, 437, 121 N.W. 34. We think it apparent that the testator's object was to aid Audubon County in the construction of a new courthouse. Indeed, Item F in effect so provides.

This branch of the case involves the meaning of the words in Item F: 'In the event that the County of Audubon shall construct and build a new courthouse * * * within ten years after my death, * * *.' The vital question is the meaning of 'within.' In fixing time, this word is fairly susceptible of different meanings. See 45 Words and Phrases, Perm.Ed., pp. 378-385. It may be taken to fix both the beginning and end of the period of time in which a specified act must be done. In this sense 'within' means 'during.'

However, 'within' frequently means 'not beyond, not later than, any time before, before the expiration of.' In this sense 'within' fixes the end but not the beginning of the period of time. This meaning is neither unusual nor strained and is well recognized in law. Since this is a charitable bequest and in view of the rules of construction above mentioned, we are entirely justified in adopting this meaning of 'within' in construing Item F. Since the courthouse was constructed after the making of the will, even though before testator's death, we think it was constructed within ten years after testator's death, within the meaning of the will. In support of our conclusion see Hartshorne v. Central U. T. Co. of New York, 103 N.J. Eq. 111, 142 A. 352; Storing v. Stutsman, 56 N.D. 531, 218 N.W. 223, 226, 227; Davies v. Miller, 130 U.S. 284, 9 S.Ct. 560, 32 L.Ed. 932; French v. Powell, 135 Cal. 636, 68 P. 92, 94; Carey-Lombard Lumber Co. v. Fullenwider, 150 Ill. 629, 37 N.E. 899, 900.

Hartshorne v. Central U. T. Co. of New York, supra, is closely in point. There the will provided that payment of a bequest was to be accelerated if the beneficiary performed a certain act 'within three months after my death.' Even though the bequest was not a charitable one, the court held that performance of the act after the will was made, before the testator died, was a compliance with the condition of the will.

We have carefully considered In re White's Estate, 130 Kan. 714, 288 P. 764, upon which the residuary legatees place strong reliance. There is legacy to the Salvation Army to assist in erecting a building was held to have failed because the building was constructed before testatrix died. However, the important provision of the White will made commencement of actual building operations within two years after testatrix' decease a condition to the validity of the legacy. There is nothing in the Anderson will that requires construction of the courthouse to be commenced after his death.

Some significance may properly be attached to the fact that in all probability Anderson had full knowledge of the erection of the courthouse and made no change in the terms of his will. Levings v. Wood et al., 339 Ill. 11, 170 N.E. 767, 770, and cases cited.

Since we have rejected the contention of the heir-legatees and upheld the gift to Audubon County under Item F, it is of no consequence whether, by accepting payment of their legacies, the heir-legatees estopped themselves from questioning the gift to the county, as it alleged in its third amendment to answer.

II. Paragraph 4 of the will reads:

'Should any of the beneficiaries named in this will file any objections to the probate of this will, or bring any action to set aside the probate thereof, or aid in making any objections to the probate thereof or aid in bringing any action to set said will aside, I direct that in that event the share or shares herein given to said beneficiary or beneficiaries shall lapse and that such lapsed legacy shall be added in equal proportions to the bequests provided for in items F and G herein.'

Audubon County has appealed from the failure of the trial court to hold that the heir-legatees forfeited their legacies (and that a portion thereof be added to the bequest in Item F), because of paragraph 4 of the will, as a result of disputing the right of the county to its bequest under Item F. This contention was not raised in the lower court by any pleading nor in any other way, so far as the record shows. (We have not overlooked Audubon County's third amendment to answer.) We would, of course, for this reason be justified in not considering this contention.

Notwithstanding what we have just said, we have carefully considered the appeal of Audubon County and find it is without merit. The heir-legatees did not 'file any objections to the probate of this will, or bring any action to set aside the probate thereof, or aid in making any objections to the probate thereof or aid in bringing any action to set said will aside' within the meaning of paragraph 4.

This suit was brought by the executors to obtain a construction of portions of the will, pursuant to an order of the probate court. Presumably both the executors and the probate court were uncertain that Audubon County was entitled to its bequest under Item F. The heirs were made defendants to the suit. They merely asserted that under what they contended was a proper construction of Item F, the bequest was not payable to the county and should be added to the residuary estate of which they were beneficiaries. The heirs' contention as against Audubon County involved merely a dispute over the meaning of a single provision of the will. There is no basis for invoking paragraph 4 of the will against the heirs. South Norwalk Trust Co. v. St. John, 92 Conn. 168, 101 A. 961, Ann.Cas.1918E, 1090, 1093; 69 C.J. 687, 688, section 1808, n. 89; Annotation, 5 A.L.R. 1370, 1372, 1373.

Further even though what the heirs have done in this case could be considered such a contest of the will as to invoke the provisions...