Leighton v. Leighton

• Decision Date: 23 June 1922
• Docket Number: No. 34293.,34293.
• Parties: LEIGHTON v. LEIGHTON ET AL.
• Court: Iowa Supreme Court

193 Iowa 1299

188 N.W. 922

LEIGHTON

v.LEIGHTON ET AL.

No. 34293.

Supreme Court of Iowa.

June 23, 1922.

Appeal from District Court, Wapello County; C. W. Vermilion, Judge.

Action in equity to construe the will of Alvin C. Leighton, deceased. The plaintiff first appealed from the decree of the district court, and is the appellant. Other of the defendants, as indicated in the title, thereafter served notice of appeal, and will be referred to as cross-appellants. Other of the defendants have not appealed. The issues, facts, and findings of the trial court are set out in the opinion. Affirmed.McNett & McNett and Jaques, Tisdale & Jaques, all of Ottumwa, for appellant.

Curtis L. Day, of Pender, Neb., for cross-appellant Flora Leighton.

Gillies & Daugherty, of Ottumwa, and Stipp, Berry, Bannister & Starzinger, of Des Moines, for cross-appellants Joseph Leighton and Alvin C. Leighton.

Work, Lewis & Work and Gilmore & Moon, all of Ottumwa, for cross-appellants James Leighton and Emily Frances Leighton.

Harry Weiss, of St. Paul, Minn., for appellee Mary Inez Thompson.

PRESTON, J.

We find this statement in the somewhat extended opinion of the trial court, in regard to the will and three codicils probated as the will of deceased:

“These four documents when taken together, as they must be, constitute a truly bewildering attempt at a testamentary disposition of property. It is impossible to avoid some expression of the amazement inevitable upon discovering that a business man, capable of accumulating so large an estate, could so befog its final disposition. A further commentary upon the futility of the effort evidenced by the document in hand, is suggested by the fact that such an elaborate and long-considered attempt to control the disposition of property after the death of the owner, should result in such a large measure of intestacy. * * * All that can be claimed for the conclusions reached, is that they effect a disposition of the estate in accordance with what are believed to be the controlling provisions of the will and codicils, under the situation presented, and in accordance with the law as it is understood to be. Some advantage is admittedly taken of the fact that counsel are interested in conclusions, rather than reasons. * * * So far as the conclusions reached are in conflict with cited authorities, it may be said that the views expressed are believed to be in accordance with the weight of controlling authority.”

Counsel for appellant say:

“That of all the numerous cases brought to this court involving the interpretation of wills, the books will fail to disclose any case wherein more confusion, more contradiction as between the several instruments, and more opportunity for diversity of opinion as to what interpretation should be ultimately placed upon the will, than will be found here. * * * It will be for your honors to say, after the case is discussed, what the intention of the testator actually was, in respect to the conflictingviews concerning the meaning of his will. When you have done the best you can, who but Omnipotence can say whether, after all, you have arrived at his intention.”

We approach the subject with some apprehension. Mary T. Leighton, who is executrix, is also the widow of deceased. She elected to take, not under the will, but under the law. Cross-appellant Flora Leighton is a cousin of deceased, and a legatee. All other parties say the trial court divided correctly as to her. She is concerned in the construction of a part of paragraph 3, of the original will and first codicil, and a part of paragraph 5 of the first codicil. Defendants Alvin and Joseph are nephews of deceased, sole heirs of a deceased brother; defendants James and Emily are children of Henry Leighton, deceased, who was found by the trial court to have been a son of testator, recognized by him as such. The plaintiff, in her petition, did not recognize James and Emily as grandchildren of testator, and there was a contest as to the heirship, which, by agreement, was tried out first. We do not understand that matter to be involved in this appeal though the notice of appeal was introduced in the evidence. Testator left no children surviving, and there were no children of plaintiff Mary and testator. Defendants James and Emily join in or supplement the argument for Alvin and Joseph, and in a way make the same claims. Defendants, the three Jordans, are the sole heirs of a deceased sister; they appeared to give jurisdiction but make no contest. Defendant Thompson is the sole heir of a deceased sister. There is no argument in her behalf.

Testator died July 1, 1917. The will and codicils were probated and plaintiff appointed executrix and trustee August 28, 1917. The original will is dated October 2, 1911; the first codicil October 16, 1912; the second codicil January 11, 1916, and the third codicil two days thereafter. This last is entitled, “Saving clause to last will and testament of Alvin C. Leighton.” It refers to the original will and two codicils, and states that said instrument above named, taken all together, being his whole will and testament, subject to and saving the terms and provisions of said above-named three instruments, when taken and together construed according to their true meaning, intent, and effect--

“do will, devise, and bequeath all the rest, residue, and remainder of my estate unto my wife, said Mary T. Leighton. This clause not to conflict with, nor defeat any of the provisions of my last will or codicil or codicils thereto, but more completely to save and strengthen the same.”

Before setting out further provisions of the will, some preliminary matters will be stated. James Leighton was born March 19, 1897, and is still living and unmarried. Emily was born August 16, 1903, and is still living and unmarried. Margaret Clara Benson survived testator, and afterwards married one Gove, September 4, 1917, and is still living and has no heirs of her body. It appears that there is another action pending by James and Emily against plaintiff executrix, pertaining to the ownership of the Leighton Block in Ottumwa, and because of this, and perhaps for other reasons, it is stipulated that the value and net value of the estate cannot be definitely now determined. It was stipulated that, for the purposes only of the interpretation of the will and codicils, the net value at the time of the death of testator was in excess of $50,000, and not more than $100,000; that it was in excess of $100,000 and not more than $150,000; it was in excess of the sum and value of $150,000. Appellant states in argument that it is claimed in the pleadings, and admitted that the estate was worth at least $150,000, and that, according to the figures of James and Emily, it amounted to more than $300,000. It was stipulated that the ownership of the Leighton Block was to be left open for future adjudication and the stipulation as to value shall not bar any party to the action hereafter, in the further progress of the settlement of the estate, from proving the actual value of the property. We take it that the Bensons, and perhaps one or two others mentioned in the will, are heirs or relatives of the wife of testator. We shall attempt to state the provisions of the will and codicils by condensing as much as may be, and will attempt to give all provisions which have any bearing on the questions presented.

The original will provides:

Paragraph 1. That, after the payment of the debts, testator wills to his wife for the period of her natural life only all property real and personal; appoints her executrix and trustee; she shall have the right and power to sell and convey any real estate to pay debts; after debts are fully paid, she may, if she thinks best, sell any real estate and use the proceeds in paying bequests under the will, except such legacies as are payable only during the life of the legatee; the wife to use of the net income all that is necessary for living and household expenses, travel, and everything she may require in way of expenses, without restrictions.

Second. In the event that, upon the settlement of the estate, there shall be but $50,000 or less, then one-third to Margaret Clara Benson, if living; one third to James Leighton if living; the remaining one-third to Emily Frances Leighton, if living, but the two last named shall not have possession or control of the principal but receive only the income thereof during their natural life, the principal to be managed by Mary T. Leighton, trustee, to be paid to the heirs of the body of said James and Emily within one year following the death of said James and Emily.

Third. If the net estate amounts to more than $50,000, then the second $50,000 or less, if there be not $100,000, shall be divided; one-tenth each to four Bensons. The net income of one-tenth of said $50,000 fund to Amanda and Elizabeth Seip, payable as they may desire during the natural life of said legatees, upon the death of one of the two, the whole of said income to go to the survivor of the two during her natural life. The net annual income upon one-fifth of said $50,000 fund to be paid to Flora Leighton, during her lifetime. The net annual income of the remainder of said $50,000 fund to be paid semiannually, share and share alike, to Alvin and Joseph, upon the decease of one of the two, the said entire income to go to the survivor of the two for his natural life. Upon the demise of all of the said legatees, subject to the provisions above, the said principal ($30,000) shall fall into my estate and be disposed of under the other and farther terms of this will.

Fourth. If the estate net more than $100,000, then the first $50,000 above the $100,000 (or less if there should not be $150,000) shall be distributed: One-fourth to said Margaret Clara Benson; one-fourth to James Leighton; one-fourth to Emily Frances Leighton; one-tenth thereof to the children of Benjamin S. Benson. The net annual income of the...