Kalouse's Estate, Matter of

Decision Date29 August 1979
Docket NumberNo. 61204,61204
Citation282 N.W.2d 98
PartiesIn the Matter of the ESTATE OF Louie KALOUSE, Deceased. Edward KALOUSE, Emma Kostal, Frank Kalouse, Laurence Kalouse, Bess Robinson, Lena Liercke, Vlasta Long, Laura Taylor, Fred Pegorick, Sr., Mable Pegorick Hansen, Josie Soukup, Emma Triltsch, Jessie Guthrie, Grace Houstman, Bessie Cornelius, Irma Reib, J. Cyril O'Hara, James F. O'Hara, Fannie Riches Fritz, John Riches, Sr., and Frank Riches, Appellees, v. Emma BURDA, Harley Kalous, a/k/a Harley Kalouse, Louis Pegorick, Frank J. Nespor, Howard M. Remley and Citizens State Bank of Wyoming as Co-Executors of the Louie Kalouse Estate, Howard M. Remley, attorney for the Louie Kalouse Estate, James W. Affeldt, guardian ad litem for the Louie Kalouse Estate, Velma Bickford White, Ronald Bickford, Robert J. Kalous, a/k/a Robert J. Kalouse, John Floyd Kalous, a/k/a John Floyd Kalouse, Edward C. Kalous, a/k/a Edward C. Kalouse, Grace Garner, Arthur Cable, and Kenneth Cable, Defendants, Audrey M. Pegorick Smith, Appellant, Vernie Hansen, Defendant, Rita Duren, Janice James, Dennis L. Hansen, Dean A. Hansen, and Robert E. Hansen, Appellants, Frances M. Kuehl, Mildred L. Willert, Velma L. Fritz, Marjorie Holding, Frances Lange, and Grace Dolak, Defendants, Richard Ray ("Buzzie") Benhart, Appellant, Grace Fandel, Alfred Pegoriek, LeRoy Pegariek, a/k/a LeRoy Pegoriek, and Edward Pegoriek, Defendants.
CourtIowa Supreme Court

99 Larry J. Conmey of Conmey Law Firm, Anamosa, for appellants Smith, Duren, James, and Hansens.

C. F. Shimanek and Nancy J. Shimanek, of Shimanek & Shimanek, Monticello, for appellant Benhart.

Robert D. Houghton and Carroll J. Reasoner, of Shuttleworth & Ingersoll, Cedar Rapids, for appellees.

Considered en banc.


Decedent Louie Kalouse made the following bequests in his will executed on August 25, 1970, during a hospital stay:

Article II

I do hereby give and bequeath my organ to Louise Nespor of Oxford Junction, Iowa, to be hers absolutely.

Article III

I do hereby give and bequeath my old antique doll to Jessie Guthrie and Grace Houstman to be theirs absolutely.

Article IV

I do hereby give and bequeath all of my old albums, pictures, and photographs to my first cousins to be divided among them as equally as possible.

Article V

I do further hereby give, bequeath and devise all the rest, residue, and remainder of my property, real and personal, of every kind and character and wherever situated unto my first cousins on both my father's and mother's side of my family, and to Frank Nespor, in equal shares, share and share, alike, with the share going to Frank Nespor to be equal with that of my other first cousins.

Kalouse died on November 26, 1976, at age 79, survived by 24 first cousins plus Frank Nespor. Thirteen other first cousins had died before the will was executed, and five first cousins died after the will was executed but before Kalouse died. In this will construction action the trial court held that Article V creates a class gift and that the antilapse statute therefore does not apply. On appeal several heirs of predeceased first cousins contest the trial court's holding.

I. Class gift. In construing a will we apply the following rules stated in Elkader Production Credit Association v. Eulberg, 251 N.W.2d 234, 237 (Iowa 1977):

(1) (T)estator's intent is the polestar and if expressed shall control; (2) it must be gleaned from a consideration of all language contained in the will, the scheme of distribution, and facts and circumstances surrounding the making of the will; and (3) technical rules of construction should be resorted to only if the will is clearly ambiguous, conflicting, or testator's intent is for any reason uncertain. See e. g., In re Estate of Spencer, 232 N.W.2d 491, 495 (Iowa 1975).

Article V left the residue of Kalouse's property to "first cousins on both my father's and mother's side of my family, and to Frank Nespor, in equal shares, share and share, alike . . .." Kalouse's first cousins were his closest living relatives. Frank Nespor was a half-brother of a first cousin but was not a blood relative of the decedent.

If Kalouse had excluded Frank Nespor and left his property to "my first cousins on both my father's and mother's side of my family," a class gift would have clearly resulted. See Smith v. Harris, 227 Iowa 127, 131, 287 N.W. 255, 257 (1939) ("surviving children"); White v. Wachovia Bank & Trust Co., 251 F.Supp. 155, 159 (M.D.N.C.1966) ("surviving brother and sisters or their legal representatives": "Ordinarily a gift to persons who are not named or numbered in the language of a gift but are designated therein only in general terms, as by relationship to the testator or another, is a gift to a class."); Lacy v. Murdock, 147 Neb. 242, 246, 22 N.W.2d 713, 716 (1946) ("children"); In re Estate of Ransom, 89 N.J.Super. 224, 230, 214 A.2d 521, 524 (1965) ("grandchildren"); Green v. Green, 9 Ohio Misc. 15, 18, 221 N.E.2d 388, 391 (1966) ("lineal descendants of my son, Richard C. Green, Per stirpes "); Sanderson v. First National Bank, 446 S.W.2d 720, 724, 726 (Tex.Civ.App.1969) ("sisters"); Annot., 61 A.L.R.2d 212, 237-40 (1958). A class gift "is a gift to two or more persons who are not named and who have one or more characteristics in common by which they are indicated or who answer to a general description." In re Estate of Coryell, 174 Neb. 603, 608, 118 N.W.2d 1002, 1005 (1963).

The trial court's comments on the class gift issue are pertinent:

However, in the case involved the only naming was that of Frank Nespor. There is no evidence whether the testator was simply thinking of the particular persons who were alive on the date of the execution of the will, or if he was thinking of the future group who would survive him. It may well be that testator had not even gone through the mental processes to make that determination. However, it is plain from the wording of his will and the mentioning of his first cousins that these were the people he wished to inherit his property, along with Frank Nespor. This general theme of disposition would indicate that it would be thwarted by providing for specific bequests to individuals, rather than to the class first cousins. Except for the mention of Frank Nespor there is no working (Sic ) in the will that indicates any specific individual or even a number of any individuals. Although Frank Nespor is named individually, the use of his name was to place him in the same classification with the other first cousins.

It is noteworthy that decedent mentions "first cousins" three times in Articles IV and V. This is especially true when he does not mention heirs at law, second cousins, children or spouses of first cousins, relatives, deceased first cousins, or first cousins "alive at this time."

It well may have been more equitable of the decedent to have named all of his heirs at law, or to have included the children of deceased first cousins. In this regard the Iowa Supreme Court, in In re Estate of Fairley, 159 N.W.2d 286, 288, stated: "Although our purpose is to arrive at the true intent of the testatrix, experience has demonstrated the advisability of adhering to established rules for the construction of wills rather than freeing judges to operate on broad principles of equity and justice."

The gift to "first cousins on both my father's and mother's side of my family" was a gift to several people, the beneficiaries were unnamed, they were all equally related to testator, their number was subject to change by decrease, and all except Nespor, to be considered later, answered to the general description of first cousins. The will itself refers to first cousins several times, and nothing in the will suggests that the issue of first cousins were to be included. See Note, Class Gifts in Iowa, 21 Drake L.Rev. 167, 169 (1971) ("The class of 'children' only includes issue of the first generation, and does not include grandchildren, unless a contrary intent is expressed in the will. Similarly, 'nieces and nephews' does not include grandnieces and grandnephews."). This court stated in Parish v. Welton, 194 Iowa 1274, 1277-78, 190 N.W. 947, 949 (1922):

In the instant case, the Testator, at the time of drawing his will, Knew of the conditions with which he was dealing; that at said time three of his children were deceased; and that they had left children surviving them who were the grandchildren of the testator. Knowing this situation, he drew the will providing for his property to be divided equally among all of his children. He designated his "children" as the class which should be the beneficiaries of his will. He made no provision that the children of any of the deceased children should participate. He made no provision that any of his grandchildren should participate. The property was to be divided equally among all of his "children."

We cannot extend the word "children" to include grandchildren, any more than in the Nicholson's Will, In re case (115 Iowa 493, 88 N.W. 1064 (1902)) could we extend the word "nephews" to include grandnephews. It is undoubtedly true that the word "children" may, in some instances, be construed to include grandchildren where it is evident from the context of the will that such was the plain intent of the testator. Bowker v. Bowker, 148 Mass. 198, 19 N.E. 213. But such a situation does not confront us here, for there is nothing in the context of the will to indicate that the intent of the testator was to include grandchildren in the term "children." The general rule is that the word "children," when used in wills, is to be understood and construed in its primary sense, and always so where there are persons in existence answering such meaning of the word. Under such circumstances, the word "children" does not include grandchildren or any others than the immediate descendants of the ancestor of the first degree. Yates v. Shern, 84 Minn. 161, 166, 86 N.W. 1004; Palmer v. Horn,...

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