Larson v. Anderson, 53476

• Decision Date: 06 May 1969
• Docket Number: No. 53476,53476
• Citation: 167 N.W.2d 640
• Parties: Luella E. LARSON, Claude I. Jensen and Neal W. Jensen, Appellants, v. Ossie ANDERSON, Executor of the Last Will and Testament of Bessie Hesla, Carrie Enderson, et al., Appellees.
• Court: Iowa Supreme Court

Page 640

167 N.W.2d 640

Luella E. LARSON, Claude I. Jensen and Neal W. Jensen, Appellants, v. Ossie ANDERSON, Executor of the Last Will and Testament of Bessie Hesla, Carrie Enderson, et al., Appellees.

No. 53476.

Supreme Court of Iowa.

May 6, 1969.

Whitney, Whitney & Stern, Storm Lake, for appellants.

J. A. Malone, Sioux Rapids, for Ossie Anderson, and Pendleton & Pendleton and James Schall, Storm Lake, for Carrie Enderson, and others, appellees.

SNELL, Justice.

This appeal follows district court proceedings for construction of the Last Will and Testament of Bessie Hesla. The petition for construction was filed by the executor. Pursuant to section 633.33, Code of Iowa, it was tried as a proceeding in equity. It is reviewable de novo.

The scrivener of the will was a member of the Minnesota Bar and the husband of one of decedent's sisters. There is no charge of any undue influence but as the trial court found it is 'abundantly clear' that the scrivener was either unaware of the legal meaning of the conflicting language under the law of Iowa or employed the language in attempting to articulate a somewhat confused intention. In any event it is clear that the will contains repugnancies and ambiguities.

Bessie Hesla, a resident of Buena Vista County, Iowa, died testate. She was survived by neither spouse nor issue. She was survived by two elderly sisters, Carrie Enderson and Luella E. Larson. She was predeceased by her other brothers and sisters.

Paragraph numbered 'First' of her will directed payment of debts and expenses.

Paragraph numbered 'Second' provided for the payment of inheritance, succession and similar taxes.

Paragraph numbered 'Third', in subparagraphs A and B, made gifts of money to a brother-in-law, Endrew Hesla and a niece Irene Enderson. It then provided:

If any one or either of the devisees or legatees mentioned in Subdivisions (A) and (B) of this paragraph, die prior to distribution to them of their respective gifts, such gifts, shall lapse and become a part of the residue of my estate.'

Endrew Hesla predeceased testatrix. Irene Enderson survived.

Paragraph numbered 'Fourth' gave personal effects, clothing, jewelry, etc. in her home to a brother, William C. Mangold, and three sisters, Emma Hegland, Mrs. Carrie Enderson and Luella E. Larson 'to share and share alike, and for their sole use and benefit and with the right and power to mortgage, sell and dispose of same as absolute owners thereof; provided that they shall survive distribution thereof to them, but if they or either of them shall die prior thereto then such bequest, gift, share or interest therein shall lapse and become a part of the residue of my estate.'

Of these, Carrie Enderson and Luella E. Larson alone survived.

Paragraph numbered 'Fifth' gave to her brother William C. Mangold and her three sisters Emma Hegland, Mrs. Carrie Enderson and Luella E. Larson, all her real estate, including her specifically described home and her farm property containing 50.31 acres.

These words appear before the description 'All to share and share alike', and following the description these words appear: 'To have and hold during their natural life and with power to mortgage, sell and convey the same and use and dispose of the proceeds thereof to all intents and purposes as owners thereof in fee and as joint tennants (sic) and not tenants in common provided they or either of them survive distribution thereof, but in the event they or either of them should die prior thereto then such bequest, gift, share or interest therein shall lapse and become a part of the residue of my estate.'

William C. Mangold and Emma Hegland predeceased, and Carrie Enderson and Luella E. Larson survived testatrix.

Paragraph numbered 'Sixth' gave all the rest, residue and remainder of her property of every nature and kind to her brother William C. Mangold and her three sisters Emma Hegland, Carrie Enderson and Luella E. Larson 'to share and share alike and with the right and power to mortgage, sell and convey the same and use and dispose of the proceeds thereof to all intents and purposes thereof in fee and as joint tenNAnts (sic) and not tenNAnts (sic) in common.'

As noted, supra, only Carrie Enderson and Luella E. Larson survived.

Paragraph numbered 'Seventh' nominated an executor and authorized sale and administrative authority. It is not involved herein.

A Codicil to the will named 33 nieces and nephews as beneficiaries of certain shares of stock.

The matter was submitted to the trial court on the probate records and files and stipulated facts.

The appellants contended and the trial court held that the Codicil was of no force and effect. No appeal has been taken from this ruling and neither the meaning nor effect of the Codicil is involved in this appeal.

On the only issue involved in this appeal, the trial court construed the Will of Bessie Hesla as giving all of her property to her predeceased brother, her predeceased sister and her two surviving sisters as tenants in common and the share of the predeceased brother and predeceased sister passed on down to their heirs under the antilapse statute.

Luella E. Larson assigned all her interest in the estate to Claude I. Jensen and Neal W. Jensen.

Luella E. Larson and Claude I. Jensen and Neal W. Jensen appealed and are the only appellants.

I. The trial court cited and used statements from In Re Estate of Zang, 255 Iowa 736, 123 N.W.2d 883 from which we quote:

'Courts, of course, have no authority to make or remake the will of a testator. The function of the court is to determine whether there is any ambiguity in the provisions of the will, and then to admit extrinsic evidence to show the intent of the testator, and to aid in resolving any doubt arising from the language used in the will. * * *

'Certain accredited canons are generally applied in interpreting wills which do not themselves unmistakably reveal the maker's intention. They are sometimes stated as follows: (1) The law will impute to a testator's words such a meaning as, under all the circumstances, will conform to his probable intention and be most agreeable to reason and justice. (Citation) (2) In determining the testator's intention the court should place itself as nearly as possible in his position, and hence should take into consideration the situation of the testator and the facts and circumstances surrounding him at the time the will was executed, * * *.' (loc. cit. 738 and 739, 123 N.W.2d 884 and 885)

In interpreting an instrument of this kind the instrument must be taken by its four corners and each paragraph read in the light of the other provisions. In Re Estate of Ritter, 239 Iowa 788, 797, 32 N.W.2d 666, 2 A.L.R.2d 1301.

As noted in the the Zang case, supra, the facts and circumstances surrounding testatrix at the time the will was executed may be considered.

The will was not drafted by an Iowa lawyer, but it was drawn for an Iowa resident. The repugnancies between the words 'joint tenants' and the other provisions in the will and sometimes in the same sentence as in paragraph numbered 'Fifth' are apparent. Appearing as they do the technical words 'joint tenants' are not entitled to the full weight that they might be entitled to if used by an experienced Iowa draftsman. The words are foreign to the other express language of the will.

II. In paragraphs 3, 4 and 5 of the will the benefits are conditional on surviving 'distribution' in the estate. The trial court held that the words 'survive distribution' meant surviving the death of the testatrix and not actual distribution during the probate of the estate. There has been no appeal from this holding and discussion here is unnecessary.

III. Section 633.273, Code of Iowa, provides:

'Antilapse statute. If a devisee die before the testator, his heirs shall inherit the property devised to him, unless...