Lewis' Estate, In re

• Decision Date: 15 January 1957
• Docket Number: No. 49088,49088
• Citation: 80 N.W.2d 347,248 Iowa 227
• Parties: Estate of Mary E. LEWIS, Deceased, George R. Carton, Administrator. R. Ted Lewis et al., Objectors-Appellants, Sarah Bentzen et al., Resistors-Appellants.
• Court: Iowa Supreme Court

Page 347

80 N.W.2d 347

248 Iowa 227

Estate of Mary E. LEWIS, Deceased, George R. Carton, Administrator R. Ted Lewis et al., Objectors-Appellants, Sarah Bentzen et al., Resistors-Appellants.

No. 49088.

Supreme Court of Iowa.

Jan. 15, 1957.

Stuart & Stuart, Chariton, for objectors-appellants.

Garrett & Bown, Corydon, and Clare Magree, Unionville, Mo., for resistors-appellees.

SMITH, Justice.

This case grows out of objections to the inventory filed in the pending estate of Mary E. Lewis, deceased. But it involves the provisions of her pre-deceased husband's will. He died October 14, 1942.

George D. and Mary E. Lewis left no descendants. Their heirs are in unrelated groups. His will (executed in 1917) contained but three paragraphs other than the usual formal opening, and a closing one nominating her executrix without bond:

'First: It is my will and desire that all my just debts and funeral expenses be first paid out of my estate.

'Second: I will, bequeath and devise all the rest and remaining portion of my estate, either personal, mixed or real property, or of whatsoever character it may consist and wheresoever situated, to my beloved wife, Mary E. Lewis, to have and to hold the same forever.

'Third: It is my will and desire that my beloved wife dispose of any and all the above described property to her and my heirs as by law may be found in such share or shares as she may designate.'

Mary E. Lewis, as executrix, filed inventory and final report listing herself as sole beneficiary; applied and was granted relief from appraisement for and payment of inheritance tax under her $40,000 exemption right; and closed the estate without any objections from any quarter.

She died intestate, January 4, 1954, some eleven years later. The administrator of her estate has inventoried all the property as hers. The heirs of George D. Lewis have filed objections to such listing, contending the property was all derived from and belonged to his estate and passed to them 'upon her failure to exercise her power of appointment' under the provisions of his will.

They contend Mr. Lewis's will 'construed as a whole' gave her only a life estate but with power of disposal 'coupled with a power of appointment, by making a will'; and that by not exercising that power she permitted the property to revert to his estate.

This inaugurated the present controversy. Mrs. Lewis' heirs have filed resistance to those objections and argue the second paragraph of the George L. Lewis will is 'an unambiguous devise of a fee simple absolute'; and that paragraph three 'is repugnant thereto and legally ineffective.'

The trial court overruled the objections and held paragraph three repugnant to 'the absolute fee simple title' created by paragraph two 'and therefore ineffective.' The objectors have appealed. Thus is presented the not unfamiliar spectacle of a property contest between the respective heirs of a childless husband and wife. The case is in probate and not equity. But there is practically no factual dispute.

I. We have no lingering doubt of the correctness of the final result reached by the trial court, even though there might be difference of opinion as to whether the third paragraph of the will is necessarily repugnant to the second.

The meaning of the language of the second paragraph is clear and explicit. It would be difficult indeed to convey an absolute fee simple title by language more free from doubt.

We cannot regard seriously, though admiring the ingenuity of, appellants' argument, that the use of the word 'forever' created any uncertainty as to testator's meaning. It may be true that standing alone the word is not a 'technical term.' And it is certainly true that absolute title may, under modern usage, be conveyed without its use. Iowa Code 1954, section 557.2, I.C.A.

But the phrase 'to have and to hold forever' is too clearly associated with the transfer of fee simple title to permit any suggestion of doubt as to its meaning in instruments of conveyance. As used here it constitutes a badge of absolute title. It confirms, rather than questions, the absolute conveyance. In 36 C.J.S. p. 1251, in defining the word 'forever' it is said: 'In devises or transfers of land, the word generally imports the creation of an estate in fee simple.' And In re Estate of Hellman, 221 Iowa 552, 555, 266 N.W. 36, 38, we referred to 'The old familiar stock phrases of the common law, such as 'in fee simple,' 'absolutely,' [and] 'to have and to hold forever'' as being unnecessary in conveyance of absolute title.

Though unnecessary now, its use surely cannot be said to create ambiguity. Any ambiguity in the will must be found in the third paragraph. Of which, more later.

II. Our decisions make it clear that an unambiguous absolute grant in one paragraph of a will cannot be limited by a separate subsequent repugnant provision. As said in Todd v. Stewart, 199 Iowa 821, 202 N.W. 844, 845:

'But, as has frequently been said, there are some things that even a testator cannot do. It is settled by an unbroken line of decisions that where a will gives an absolute title in fee, any attempt in a subsequent clause to defeat, destroy, or limit the title or estate so given is held to be inconsistent with the disposition so made, and does not affect it.'

We find no departure from this doctrine. See In re Estate of Bigham, 227 Iowa 1023, 1026, 290 N.W. 11; In re Estate of McCulloch, 243 Iowa 449, 459, 460, 52 N.W.2d 67; Overturff v. Miller, Iowa, 71 N.W.2d 913, 920. In the last cited case...