Lorimor's Estate, In re, 56000

• Citation: 216 N.W.2d 349
• Decision Date: 27 March 1974
• Docket Number: No. 56000,56000
• Parties: In the Matter of the ESTATE of Carl E. LORIMOR, Deceased. Wilma MOORE et al., Appellants, v. Marian H. LORIMOR et al., Appellees.
• Court: Iowa Supreme Court

Page 349

216 N.W.2d 349

In the Matter of the ESTATE of Carl E. LORIMOR, Deceased.

Wilma MOORE et al., Appellants, v. Marian H. LORIMOR et al., Appellees.

No. 56000.

Supreme Court of Iowa.

March 27, 1974.

Webster, Jordan & Oliver, Winterset, and Nichols & Leonard, Sidney, for appellants.

L. T. Genung, Glenwood, and Getscher, Redd & Getscher, Hamburg, for appellees.

Heard before MOORE, C.J., and MASON, UHLENHOPP, HARRIS and McCORMICK, JJ.

MASON, Justice.

In this probate proceeding certain residuary beneficiaries under the will of Carl E. Lorimor appealed from the district court's ruling sustaining motions to strike and dismiss their objections to appraisers' return of appraisement filed in decedent's estate.

Carl E. Lorimor died February 13, 1972, survived by his wife Marian and seven children. His will was admitted to probate February 24 and his wife and son, Merritt B. Lorimor, were appointed executors. Testator first provided for payment of his debts and the charges against his estate.

In the second paragraph Lorimor made certain specific bequests. In the third clause testator devised the remainder of his property to his seven children in equal shares. In the second paragraph of this provision testator gave his sons, Merritt and Newell Lorimor, who were farming his land, opportunity to purchase his farm land at a fair and reasonable price.

In order that such provision might be accomplished the testator directed that his farm land 'shall be appraised by three competent disinterested appraisers appointed by the Court, at its fair and reasonable market value, as determined by the appraisers. * * * and that said beneficiaries * * * Shall have the right to acquire the farm at the appraised value. On the same basis as though the land were sold with possessions and settlements to be delivered and made on March 1, following my death.' (Emphasis supplied).

June 13 executors filed application to construe Lorimor's will and appoint appraisers. They alleged some doubt existed as to the true meaning and interpretation of the portion of decedent's will emphasized above, the will being unclear and ambiguous in that respect. The executors contended the true and proper construction of the will in light of all of its terms, the nature of the transaction and surrounding circumstances, was that the reference to March 1, the customary date of settlement of farm sale contracts, was to establish a criterion for valuation of the land and particularly to eliminate any questions as to the effect crops growing on the premises, or rent accrued, might have upon the value of the land; thus, the land was to be appraised and valued as of the date of decedent's death unaffected by any crops which might have been growing on the premises or rents accrued.

They alleged it was necessary to appoint three competent disinterested persons to appraise said real estate in order to carry out the provisions of the will.

The court entered an order setting the time and place of hearing on the application for July 5, 1972, and directed notice of hearing thereon be given to all interested parties.

June 17 the court entered an order appointing the Fremont County inheritance tax appraisers to appraise decedent's real estate and directed them to file a report of such appraisement on or before July 14, 1972.

The order further provided notice be given to the interested parties of the time and place of appraisement, the time for filing the appraisers' report and the time within which to file objections.

July 6 the court decreed that the true and proper construction of the will was that the reference to possession and settlement on March 1, the customary date of settlement of farm contracts, was to establish a criterion for valuation of the land and particularly to eliminate any questions as to the effect growing crops on the premises or rents accrued might have on the value of the land. The order provided the land was to be appraised and valued as of the date of decedent's death, February 13, 1972, unaffected by any crops which might have been growing on the premises or rents accrued.

July 22 Alden Lorimor, individually and as trustee, Wilma Moore, Evans Lorimor, and Truman Lorimor filed objections to the appraisers' report.

They alleged, among other things, the persons appointed by the court as appraisers being the Iowa Inheritance Tax Appraisers for Fremont County did not faithfully and impartially without prejudice value and appraise the real estate to the best of their knowledge and belief because of supposedly misunderstanding the instructions in the commission and by reason of prejudice naturally arising from their status as inheritance tax appraisers.

The objectors also asserted persons appointed were not disinterested appraisers and failed to appraise the land at its fair and reasonable market value. They further stated the appraised values were so far below the fair and reasonable market value of the land as to make the result grossly unfair and unjust, partial to the option purchasers, detrimental to the beneficiaries and contrary to the testator's intent. They alleged the appraisal disregarded the value of irrigation equipment, thus violating the instructions.

In the final five paragraphs the objectors stated what they believed to be the fair and reasonable market value of the various parcels of real estate involved.

The executors and the two beneficiaries granted the option to purchase under the decedent's will filed motion to strike and dismiss the objections. They asserted in motion to strike that the objections urged were not proper allegations of ultimate facts, but attempts to plead only redundant speculation, surmise, conjecture and improper conclusions, not stating or supported by any statement or allegation of ultimate fact or essential to any right of action. This allegation is repeated as to each paragraph of the objections as a basis for motion to strike. They further stated the method of valuation set forth in the objections was incompetent and immaterial under the terms of the will.

In motion to dismiss they alleged decedent had a right to dispose of his property in the prescribed manner and the appraisal had been done in compliance with the terms of the will by qualified personnel and could not be impeached by 'mere surmise, conjecture, or difference of opinion as to what the value might be.'

In the final paragraph of their motion to dismiss they alleged the objectors had failed to allege bad faith or fraud on the part of the appraisers and set forth no basis upon which relief prayed for could be granted.

The objectors filed resistance alleging they had a right to object by virtue of the order of court entered June 17.

October 5, 1972, the court found the terms and intent of the will had been complied with, there was no allegation of fraud or bad faith in the objections, and therefore the motions to strike and dismiss were sustained.

The only issue presented by objectors' appeal is the correctness of the district court's order sustaining the motion to strike and dismiss the objections to the appraisers' return.

They rely on six brief points for reversal in which they contend: (1) sustaining the motions was tantamount to judgment on the pleadings which admits all facts well pleaded; such a motion should not be sustained unless it appears on the face of the pleading that movant is entitled to judgment as a matter of law; (2) if uncertainty exists as to testator's true meaning the will is ambiguous and extrinsic evidence should have been received; (3) it is not necessary to allege fraud or bad faith to show that the appraisers did not follow testator's directions and intent; (4) Iowa inheritance tax appraisers are not necessarily disinterested parties; (5) the executors were not proper parties to make decisions when beneficiaries differ; and (6) the court improperly overruled an earlier court order.

I. The primary question concerns the required allegations in the objections to the return of appraisement. As stated, the residuary beneficiaries who objected to the appraisal did not allege 'bad faith' or 'fraud' on the part of the appraisers. Executors and option purchasers rely on two Iowa cases for the contention that such allegation is necessary, and failure to so allege is grounds for dismissal.

In re Estate of Eckey, 192 Iowa 572, 573--575, 185 N.W. 118, 119, is one of those cases. There testator provided in the third clause of his will 'that the balance of my property, both real and personal, be appraised and divided equally between my children. This being divided in eight equal parts.' The will...