Kern's Estate, Matter of

• Decision Date: 24 January 1979
• Docket Number: No. 61190,61190
• Citation: 274 N.W.2d 325
• Parties: In the Matter of the ESTATE of Annie I. KERN, Deceased.
• Court: Iowa Supreme Court

Page 325

274 N.W.2d 325

In the Matter of the ESTATE of Annie I. KERN, Deceased.

No. 61190.

Supreme Court of Iowa.

Jan. 24, 1979.

Richard S. Bordwell, Washington, for appellant guardian ad litem.

D. Bradley Kiesey, Washington, for appellant Norma Hesseltine.

Stewart, Shearer & Tindal, Washington, for appellee executor.

Considered en banc.

UHLENHOPP, Justice.

This appeal involves an attack upon the testamentary branch of the worthier title doctrine in the context of the antilapse statute, § 633.273, Iowa Probate Code.

Testatrix Annie I. Kern and her predeceased husband had but one descendant, their son Ralph Kern. Testatrix made a will giving all of her property to Ralph, who thereafter died unmarried. Testatrix died subsequent to Ralph's death, and her will was admitted to probate.

The collateral heirs of testatrix' deceased husband claim that testatrix' property is to be divided among Ralph's heirs. If so, half of the property would go to the collateral heirs of Ralph's father and half to the collateral heirs of Ralph's mother, testatrix, pursuant to the antilapse statute. That statute provides If a devisee die before the testator, his heirs shall inherit the property devised to him, unless from the terms of the will, the intent is clear and explicit to the contrary.

Testatrix' collateral heirs contend that the property is to be divided entirely among them under the judicially-created worthier title doctrine, citing In re Estate of Warren, 211 Iowa 940, 234 N.W. 835. Under that doctrine a devise in the same quantity and quality as the devisee would take by descent is void. If the devisee survives the testator he takes as heir. If he does not so survive, the property goes as though the devise had never been made. As a result the worthier title doctrine sometimes nullifies application of the antilapse statute.

Application of the doctrine here would give all of testatrix' property to her collateral heirs, rather than to her heirs and her predeceased husband's heirs. The probate court held that the property passed entirely to testatrix' heirs, applying the Warren case. Ralph's heirs on his father's side appealed.

The present case is a classic one for application of the worthier title doctrine, and the Warren decision controls the result if we adhere to it. But Ralph's heirs on his father's side mount a frontal attack on the doctrine. The time has arrived for us to reexamine the doctrine as applied in cases involving the antilapse statute. We leave other types of cases involving the doctrine to future consideration.

I. The scholars have little good to say about the doctrine. They assert that it is purely a technical principle, it frustrates testamentary intent and antilapse enactments, and it creates confusing and contradictory results in application. Morris, The Wills Branch of the Worthier Title Doctrine, 54 Mich.L.Rev. 451; Harper & Heckel, The Doctrine of Worthier Title, 24 Ill.L.Rev. 627; Johanson, Reversions, Remainders, and the Doctrine of Worthier Title, 45 Texas L.Rev. 1 (inter vivos application). Iowa commentators are similarly unenthusiastic about the doctrine. Comment, 16 Iowa L.Rev. 559 ("This so-called rule of 'worthier title,' though it may often be re-stated, seems obsolete."); Comment, 39 Iowa L.Rev. 199, 202 ("It is hoped that the Iowa court will eliminate this antiquated doctrine from the Iowa law."). See also Note, 46 Harv.L.Rev. 993, 998. Professors Harper and Heckel cite undesirable results and say of the doctrine on page 655 of their article:

Obviously the real pragmatic considerations which occasioned its development have long since ceased to exist. But a vestige, a survival of ancient legal theory, it serves no genuine social purpose, if accurately applied. So long as courts continue to pay it lip service, in blind and complacent adulation, we may expect many such incongruous and unsatisfactory situations.

Morris says of the wills branch of the doctrine in his article in 54 Michigan Law Review 451, 495:

What meritorious arguments can be made in favor of the wills branch of the worthier title doctrine? The writer can think of none. The rule invites litigation, ensnares the unwary draftsman and frustrates the wary draftsman. As a rule of law it applies to devises made to people who are the most natural objects of the testator's bounty. To the writer's knowledge, every man who has taken up the pen to write on the policy aspects of the rule has concluded that it has no place in our law.

In rejecting the doctrine in Kentucky, the Court of Appeals of that state concluded:

After a careful consideration we are convinced that the doctrine of worthier title serves to hinder, rather than aid, in the ascertainment of the intention of a testator, which is the cardinal purpose in the construction of wills, and that it has no place in our jurisprudence. Mitchell v. Dauphin Deposit Trust Co., 283 Ky. 532, 538, 142 S.W.2d 181, 184.

The American Law Institute, expressing the statutory and decisional trend in this country, has taken the position that the worthier title doctrine applies to inter vivos conveyances but not to testamentary devises. Restatement, Property, § 314(2) and Comment J. England abolished the testamentary worthier title doctrine by statute in 1833. 3 & 4 Will. IV, ch. 106, § 3. See also Lucas v. Parsons, 24 Ga. 640, 659 ("The reason of the rule in England . . . does not apply in this state."); Bunting v. Speek, 41 Kan. 424, 21 P. 288; Besche v. Murphy, 190 Md. 539, 59 A.2d 499; In re Sewart's Estate, 342 Mich. 491, 70 N.W.2d 732; Stone v. Bucklin, 69 R.I. 274, 32 A.2d 614; Estate of Pfaff, 41 Wis.2d 159, 163 N.W.2d 140.

II. The doctrine originally had a practical purpose: under the feudal system, if real property passed by law the lord retained benefits which were lost if the property passed by will. As stated in Restatement, supra, Comment J, "This rule originated under the feudal system to preserve the feudal incidents of relief, wardship and marriage. These incidents were preserved only if the new tenant of land acquired his interest by descent from the former tenant, rather than by purchase under the terms of a devise." The Institute adds, "The reason which caused the origin of this rule no longer exists." This court itself stated in Beem v. Beem, 241 Iowa 247, 251-252, 41 N.W.2d 107, 110:

The common-law rule originated under the old feudal system in England. It was for the protection or preservation of certain benefits flowing to the overlord which would be lost if grantor's title passed to his heirs by purchase, that is, by any method other than inheritance. A rule was accordingly developed that heirs could only take from their ancestor by inheritance. A title thus acquired was considered a 'worthier title.' . . . The rule was abolished by statute in England in 1833. . . . But in the meantime it had gained some foothold in American common law.

III. The Iowa decisions illustrate the frustrating effect of the doctrine when applied to negate application of the Iowa antilapse statute. Conscious of this effect, this court has drawn minute distinctions to remove cases from the operation of the doctrine. The principal cases involving the doctrine in the antilapse statute setting are Tennant v. Smith, 173 Iowa 264, 155 N.W. 267 (inter-spousal devise;...