Jordan v. Hinkle

• Decision Date: 13 April 1900
• Citation: 82 N.W. 426,111 Iowa 43
• Parties: ALICE JORDAN, Guardian of Gracie Jordan, a minor, v. ARTHUR HINKLE, HENRY HINKLE, LORA CRAPFEL, A. F. CRAPFEL AND MARY HINKLE, Appellants, v. GRACIE JORDAN, KEO JORDAN AND J. O. HUNNELL, Executor, Defendants
• Court: Iowa Supreme Court

82 N.W. 426

111 Iowa 43

ALICE JORDAN, Guardian of Gracie Jordan, a minor, v. ARTHUR HINKLE, HENRY HINKLE, LORA CRAPFEL, A. F. CRAPFEL AND MARY HINKLE, Appellants, v. GRACIE JORDAN, KEO JORDAN AND J. O. HUNNELL, Executor, Defendants

Supreme Court of Iowa, Des Moines

April 13, 1900

Appeal from Davis District Court.--HON. T. M. FEE, Judge.

THE plaintiff, as guardian, asks that the title to certain real estate be quieted in her ward, Gracie Jordan, as against defendants (appellants), and for an order to sell said real estate. The question involved is as to the proper construction to be given to the last will and testament of James H. Jordan, deceased. On hearing had, said will was construed as claimed by the plaintiff, and decree rendered accordingly, from which the defendants appeal.

Reversed.

McNett & Tisdale for appellants.

E. E McElroy for appellee.

OPINION

GIVEN, J.

I.

The will of Mr. Jordan, after directing in the first paragraph the payment of debts and funeral expenses out of the personal property, provides, in the second, that the proceeds of the personal property remaining shall be divided equally among his grandchildren, naming them, being the plaintiff's ward and the defendants (appellants) above named. The third paragraph devised "to the heirs at law of my daughter Sallie Hinkle, to share and share alike, the following described real estate," describing certain lands. The fourth paragraph devised "to Keo Jordan, daughter of my deceased son Victor P. Jordan, the following real estate," describing certain lands. The fifth devises "to Gracie Jordan, daughter of my deceased son H. C Jordan, the following described real estate," describing certain other lands. The sixth paragraph, the construction of which is the subject of this controversy, is as follows: "Sixth. It is my express will that in case either of my said granddaughters, Gracie Jordan or Keo Jordan, should die without heirs, then, and in that event, the real estate herein bequeathed to them, or either of them, as the case may be, shall revert back to such of my legal heirs as may be living at that time, in equal proportion." The contention is as to the construction to be given to the words "should die without heirs," as found in said sixth paragraph. There is no dispute but that the word "heirs" means heirs of the body. See Furenes v. Severtson, 102 Iowa 322, 71 N.W. 196. The plaintiff contends that the words "should die without heirs" must be construed as meaning that, if Gracie or Keo should die without heirs before the testator's death, then the estate would have reverted back; while the defendants (appellants) claim that the estate devised to either is to revert back on the death of the devisee without heirs, whether her death was before or after that of the testator. The learned district judge construed the will as claimed by the plaintiff, and held that, as Gracie survived the testator, her estate has become an absolute estate in fee simple. If the will is to be construed as claimed by the defendants (appellants), Gracie and Keo have but a conditional estate, and the land of each is subject to revert back on her death without heirs of her body.

II. Counsel quote at length from text-books and cases, and present numerous citations, yet, as we said in Wilhelm v Calder, 102 Iowa 342, 71 N.W. 214, "cases are of little help, except as they settle rules and principles by which to arrive at the intent of the testator, which is always the pivotal point of inquiry in such controversies as this." A primary rule of construction is that the intention of the testator, when ascertained, and not contrary to law, must control. Jordan v. Woodin, 93 Iowa 453, 61 N.W. 948; Meek v. Briggs, 87 Iowa 610, 54 N.W. 456. That intention must be arrived at from the will alone, unless it be ambiguous and uncertain as to the estate or thing bequeathed or devised, or as to the person for whom the bequest or devise is intended. When thus ambiguous, extrinsic evidence will be considered, not to vary the plain effect of the language used, but for the purpose of making intelligible in the will that which without its aid cannot be understood. Moran v. Moran, 104 Iowa 216 (39 L. R. A. 204, 73 N.W. 617); Evans v. Hunter, 86 Iowa 413 (17 L. R. A. 308, 53 N.W. 277); Furenes v. Severtson, 102 Iowa 322, 71 N.W. 196. "Where the...