Larson's Estate, In re

• Citation: 256 Iowa 1392,131 N.W.2d 503
• Decision Date: 17 November 1964
• Docket Number: No. 51451,51451
• Parties: In the Matter of the ESTATE of Herbert LARSON, Deceased.
• Court: United States State Supreme Court of Iowa

Page 503

131 N.W.2d 503

256 Iowa 1392

In the Matter of the ESTATE of Herbert LARSON, Deceased.

No. 51451.

Supreme Court of Iowa.

Nov. 17, 1964.

Mitchell, Mitchell & Murray and Arthur H. Johnson, Fort Dodge, for appellants.

Alan Loth, Fort Dodge, for appellees.

THORNTON, Justice.

This is an application in probate in the estate of Herbert Larson to construe the will of his uncle, Robert E. Anderson. The uncle, Robert E. Anderson, whose will is here construed, executed his will in 1936. He died childless in 1944 at the age of 67.

His will, after providing for the payment of debts and funeral expense, gave his widow a life estate in, 'all of my property of every kind.' Paragraph three, giving rise to this action, is:

'Subject to the live estate given by Par. 2 of this will to my wife, Amanda Anderson, I give, devise and bequeath my property as follows:

'To my legal heirs I give, devise and bequeath my farm in Clay Township * * *, my said heirs to share my property equally.

'My land in Burnside Township * * * I give, devise and bequeath in equal shares to my legal heirs and to the children of Louise Johnson and Anna Lundgren, share and share alike. It being understood that during the life of my wife, Amanda Anderson, the bequests made in this paragraph shall have no legal force or effect and she shall take the entire income from said property as specified in Par. 2 hereof.'

The wife, Amanda, was appointed executrix, she died in 1962.

The facts known to the testator at the time of the execution of his will are, his sister, Amanda Larson, was deceased, survived by six children. These children, or their successors in interest, are appellants here. His brother, Paul, and his sisters, Anna Lundquist and Agnes Sederholm, were alive. No reason appears why testator did not know the children of his brother and his sisters at the time he executed his will and until his death. These persons, Amanda's children, and Paul, Anna and Agnes, all survived the testator. Louise Johnson and Anna Lundgren were sisters of testator's wife, they died in 1940. The class composed of their children was thus closed in 1940 and known to testator for four years before his death.

Testator died intestate as to the remainder interest of all of his personal property and as to real estate located in Gowrie, Iowa. The extent of his intestate property or when it was acquired is not shown.

The trial court construed paragraph three of the will to call for a per stirpes disposition of the Clay Township farm, i e., his brother and two sisters living at his death each took a 1/4 interest and the children of Amanda Larson, testator's predeceased sister, as a group took a 1/4 interest. The Burnside Township land was divided 1/6 each to Paul, Anna and Agnes; 1/6 to the children of Amanda, 1/36 each; 1/6 to the children of Louise Johnson; and 1/6 to the children of Anna Lundgren; thus Louise's two children each received a 1/12 interest and Anna's three children a 1/18 interest each.

The appellants contend the will calls for a per capita distribution of the land devised. The appellees contend the trial court was right on a per stirpes basis.

I. It is well settled law (1) the testator's intent is the polestar and must prevail; (2) his intent must be gathered from a consideration of (a) all the language contained in the four corners of his will, (b) his scheme of distribution, (c) the circumstances surrounding him at the time he made his will, and (d) the existing facts; and (3) technical rules or canons of construction should be resorted to only if the language of the will is ambiguous or conflicting or the testator's intent is for any reason uncertain. In re Burleigh's Estate, 405 Pa. 373, 175 A.2d 838, 839; In re Estate of Zang, Iowa, 123 N.W.2d 883, 885; and Gilbert v. Wenzel, 247 Iowa 1279, 1281, 78 N.W.2d 793. To aid in determining whether a per capita or per stirpes distribution was intended certain principles and rules of construction have been enunciated.

In this case it is not disputed but the term 'my legal heirs' refers to those upon whom the laws of descent and distribution cast the estate on the death of the ancestor. In this case where the testator was childless and his parents deceased, his legal heirs were his living brother and sisters and the children of his deceased sister. Sections 636.40 and 636.31, Code of Iowa, 1962, I.C.A. And it is not contended the will speaks from any other time than the death of the testator.

Though appellees contend to the contrary, it is clear the devise of real estate in each instance here is direct to the individuals, not by right of representation. The words used describe those who are to take. Gilbert v. Wenzel, 247 Iowa 1279, 1283, 78 N.W.2d 793; Martin v. Beatty, 253 Iowa 1237, 1245, 115 N.W.2d 706; and Parker v. Foxworthy, 167 Iowa 649, 149 N.W. 879.

The controversy as to the Clay Township farm is over the words 'my said heirs to share my property equally' and as to the Burnside land over the words, 'in equal shares' and 'share and share alike.'

When the gift is to a class composed of the same degree of relationship the above words are quite universally held to intend a per capita distribution, unless of course contrary language appears. However, where as here the class, my legal heirs, is composed of brothers and sisters and nieces and nephews, a difference of opinion arises. See Annotations, 16 A.L.R. 15, 78 A.L.R. 1385, 126 A.L.R. 127, and 13 A.L.R.2d 1023; and Page on Wills, Lifetime Ed., § 1080, pp. 285, 286, and § 1082, pp. 290, 291. The theory contended for by appellants is the words 'legal heirs' describe who shall take and 'equally' and 'share and share alike' describe how they shall take. This was the view taken by this court in Parker v. Foxworthy, 167 Iowa 649, 149 N.W. 879, in an opinion written by Judge Deemer in 1914. The case is in point in principle with this one. In Parker, the testator, after providing for a life estate for his wife, provided (page 650 of 167 Iowa, page 879 of 149 N.W.):

'* * * After her decease all of my said estate remaining unused shall be distributed to my heirs share and share alike.

'I also direct that if any of my said heirs shall not survive my said wife, * * *, that portion of said estate which would have gone to said heir had such an one been living, shall be divided share and share alike between the legal heirs of my said heir at that time deceased.'

The testator's 'heirs' were children and grandchildren (children of deceased children). The children contended for per stirpes distribution, the grandchildren for per capita distribution. In affirming a per capita distribution this court said at page 651 of 167 Iowa, page 879 of 149 N.W.:

'All the parties to this suit * * * are heirs of Joseph Foxworthy, and he made no distinction between them. They are named as a class, and each is put upon an equality with the other. The gift is direct and immediate to his heirs, and it specifically says that they shall take share and share alike. No thought of substitutional or representative gift appears, save as one or more should not survive the wife. Had it not been for the clause 'for equal division,' the presumption might arise that the heirs should take according to the rules of descent, as said in Johnson v. Bodine, 108 Iowa, 594, 79 N.W. 348.'

In Johnson v. Bodine, 108 Iowa 594, 79 N.W. 348, the will provided a life estate in one-half of the estate to one brother, 'with remainder to my heirs at law,' and for a life estate to his other brother with this provision, 'The remainder as hereinafter stated.' It was then provided, '* * * at the death of my brothers, * * * that my entire estate, both real and personal, be divided between my heirs at law.' Testator's heirs were his brothers and issue of three predeceased sisters, including his nieces and nephews and grandnieces and grandnephews. At pages 597-598 of 108 Iowa, page 349 of 79 N.W., we quoted with approval from Daggett v. Slack, 8 Metc. (Mass.) 450, 453, as follows:

'The court are of opinion that, according to the established rule of law, a devise to 'heirs,' whether it be to one's own heirs or to the heirs of a third person, designates, not only the persons who are to take, but also the manner and portions in which they are to take, and that, when there are no words to control the presumption of the will of the testator, the law presumes his intention to be that they shall take as heirs would take by the rules of descent. Therefore, in the present case, where there are no such words, the true construction of the will is that the grandchildren take per stirpes, and not per capita. * * * Such presumption, however, will be easily controlled by any words in the will indicating a different intention of the testator; as if, after a devise to 'heirs,' it be added, 'in equal shares,' or 'share and share alike,' or 'to them and each of them,' or 'equally to be divided,' or any equivalent words, intimating an equal division, then they will take per capita each in his own right. But, when there are no such words, the presumption is that the testator referred to the familiar law of descents and distributions to regulate the distribution of his bequest.'

In Parker v. Foxworthy, supra, and Johnson v. Bodine, supra, we adopted the rule that the words, 'in equal shares,' 'share and share alike' or equivalent words intimating an equal division show the testator intends a per capita division. That when the devise or bequest is to 'heirs' without more, 'heirs' designates not only who shall take but the manner and portions which they are to take and it is presumed they take under the laws of descent. But when the words intimating an equal division are added a different intention is indicated. In both of the above cases heirs of varying degrees of relationship to the testator were involved.

Our holding in the above cases is contrary to the holding in the following authorities cited by appellees, ...