Layton v. Tucker

• Decision Date: 18 June 1946
• Docket Number: 46847.
• Citation: 23 N.W.2d 297,237 Iowa 623
• Parties: LAYTON et al. v. TUCKER et al.
• Court: Iowa Supreme Court

23 N.W.2d 297

237 Iowa 623

LAYTON et al. v. TUCKER et al.

No. 46847.

Supreme Court of Iowa

June 18, 1946

W. H. Scott, of Nashua, Arthur W. Hyke, of Waterloo, and Pike, Sias & Butler, of Waterloo, for appellants.

Larson & Carr, of Charles City, and R. W. Zastrow, of Charles City, for appellees.

OLIVER Justice.

This appeal involves 115 acres of farm land which plaintiffs and defendant Lee W. Tucker, appellants herein, claim under the residuary clause of the will of Eva M. Cagley, deceased. Defendant-appellees Burr Shipley, Doris Fallgatter, Robert Cagley and Gladys Lord, claim said land under another clause of the same will. Other appellees are merely nominal parties to this appeal and for convenience the four persons last above named will be referred to herein as though they were the only appellees.

Testatrix Eva M. Cagley was the widow of John Cagley. Clare Cagley was their only surviving child or issue. John Cagley died in 1920. His estate consisted of the 115 acre 'old home farm' here involved and about $13,000 in personalty. Under his will the daughter Clare took $5,000 and testatrix received a life estate in the farm and the entire remainder of John Cagley's estate. Clare died intestate and without issue in 1924 and her entire estate, amounting to about $5,000 passed to her husband, appellant Lee W. Tucker. Testatrix Eva M. Cagley died in 1943. Her estate consisted of the 115 acre tract in question, appraised with an adjoining 40 acre tract at $11,000, and other real estate and personal property appraised at about $47,000. Her will, executed in 1939, provides in part as follows:

Par. 1 directs payment of debts.

Par. 2 'It is my belief that 120 acres of land described as the SE 1/4 of the NE 1/4 and the W 1/2 of the NE 1/4 (less 5 acres) in Section 28, Twp. 94, Range 14, owned by my deceased husband John Cagley, which he gave in his last will to our daughter, Clare Cagley, subject to a life estate willed to me, be distributed to his four nieces and nephews, named as follows, Burr Shipley, Doris Fallgatter, Robert Cagley, and Gladys Lord, said Clare Cagley now being also deceased.'

Par. 3 leaves 30 cash legacies totaling $7,200 to certain relatives, public institutions, two tenants on the farm and two persons who were born there. None of the appellees is mentioned in this paragraph but the wife of one is bequeathed $100.

Par. 4 'All the rest and residue of my estate of every name and nature and wherever found, I give, devise and bequeath in equal amounts, to be divided between the following four persons, share and share alike, Lee W. Tucker, former husband of my daughter, Clare Cagley, P. A. Layton, a brother William Layton, a brother, and Minnie Layton, a sister, * * *.'

That testatrix had a sentimental regard for the farm is indicated by her bequests to former and present tenants and to two children 'born on my old home farm'. Under the residuary clause of the will, appellants, who are her brothers, sister, and son-in-law, receive the bulk of her estate. Appellees, who were on friendly terms with testatrix, are the only surviving blood relatives of her deceased husband. Under the circumstances, the return to them of her husband's farm would seem to be a natural act. If Par. 2 does not give them the farm it would pass to appellants under the residuary clause and appellees would take nothing under the will.

The will was not drawn by a lawyer. The president of the bank with which testatrix dealt testified he drew the will or assisted testatrix in making it; that she handed him a paper upon which she had written the disposition made of the farm and this was copied by him as Par. 2 of the will; that she gave him a list of the names of the legatees and the amount of each legacy and he placed those in Par. 3 and that she also told him the names of the persons to whom she wanted the remainder to go, from which he prepared Par. 4. Hence Par. 2 (only) is in the language of testatrix herself, placed in the will without legal assistance or correction. Its language and phraseology are inept and its meaning is technically subject to question.

The cardinal purpose of the construction of a will is to ascertain the intent of the testator. In re Austin's Estate, Iowa, 20 N.W.2d 445; In re Estate of Pottorff, 216 Iowa 1370, 250 N.W. 463. Where such intent is not clearly expressed the court will, as far as possible, place itself in the position of the testator and consider the surrounding circumstances as an aid in determining the meaning in which the language was used. In re Estate of Dodge, 207 Iowa 374, 380, 223 N.W. 106.

Technical rules which tend to defeat that intent are to some extent disregarded. The intent may be gathered from the instrument itself, as well as from the surrounding circumstances. To ascertain the intent of testator it is sometimes permissible to change the language of the...