Luke's Estate, In re, 54086
Decision Date | 09 February 1971 |
Docket Number | No. 54086,54086 |
Citation | 184 N.W.2d 42 |
Parties | In the Matter of the ESTATE of Isabell LUKE, Deceased. Alfred LUKE, Co-Executor of the Estate of Isabell Luke, Deceased, Appellee, v. Hilda M. LUKE, Co-Executor of the Estate of Isabell Luke, Deceased, Hilda M. Luke, Mildred C. Luke, Alvin C. Luke, Verlyn D. Bradley, Maxine J. Cranston, Joseph B. Bradley, and Delbert D. Luke, the legatees, devisees, and beneficiaries under the Will of Isabell Luke, Deceased, and her Estate, Appellants. |
Court | Iowa Supreme Court |
Fitzgibbons Brothers, Estherville, for Verlyn Bradley, defendant-appellee, appellant on cross-appeal.
James, Greer, Nelson & Bertell, Spencer, for Alfred Luke, co-executor of the Estate of Isabell Luke, plaintiff-appellee, appellant on cross-appeal, and Mildred C. Luke, Alvin C. Luke and Maxine J. Cranston, defendants-appellees, appellants on cross-appeal.
Arthur W. Smith, Emmetsburg, for Hilda M. Luke and Delbert D. Luke, defendants-appellants, appellees on cross-appeal.
Plaintiff co-executor brought declaratory judgment action for construction of decedent's will, and for determination as to distribution of rents and apportionment of taxes between estate of deceased life tenant and remaindermen. From decree accordingly entered by trial court, all parties appeal. We reverse and remand for further proceedings.
Isabell Luke died November 2, 1965. By the terms of her will, executed December 12, 1962, slightly in excess of one-half her property was bequeathed to Alfred C. Luke, a surviving son, the balance to six named persons.
These are the pertinent portions of the will:
'I.
'I hereby direct that all of my just debts and funeral expenses be first paid out of my estate.
'II.
'I hereby devise and bequeath unto my son, Alfred C. Luke, the elevator that is on the crib on his farm at this time.
'III.
'Subject to paragraph II hereof, I devise and bequeath one-half of all of the real estate and personal property of which I die seized and possessed to my son, Alfred C. Luke.
'IV.
'Subject to paragraph II hereof, I hereby devise and bequeath one-half interest in all of the real estate and personal property of which I die seized or possessed to the following named persons, to-wit:
'Delbert D. Luke
Maxine J. Cranston
Verlyn D. Bradley
Alvin C. Luke
Hilda M. Luke
Mildred C. Luke
'per stirpes and not per capita.'
Inceptionally the issue to be resolved is whether those residual beneficiaries designated in Paragraph IV Supra, take in equal parts or otherwise.
Because it probably discloses relationship of the parties more clearly than any narrative explanation, the family tree, as it relates to Paragraph IV, Supra, is portrayed by this chart:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
On appeal all parties challenge this order of distribution and in so doing advance the following alternatives:
1. By plaintiff Alfred Luke, co-executor, and defendants Mildred C. Luke, Alvin C. Luke, Maxine J. Cranston--divide the residual estate equally between the six named persons.
2. By defendants Hilda M. Luke and Delbert D. Luke--divide the residual estate into four equal shares with one share going to each group representing children of decedent, the remaining one-fourth to Hilda M. Luke.
3. By defendant Verlyn D. Bradley--divide the residual estate into three equal shares distributable among the representatives of decedent's three children.
The problem thus presented will be first considered.
I. A will contest is not here involved. The Code 1966, Sections 633.308--633.320; see In re Estate of Ditz, 255 Iowa 1272, 1278--1279, 125 N.W.2d 814; Smith v. Negley, 304 S.W.2d 464, 468 (Tex.Civ.App.); Black's Law Dictionary, Revised Fourth Ed., page 1773.
Neither are we confronted with an action for involuntary appointment of guardian or establishment of any contested claim.
Despite a nondeterminative pre-hearing colloquy between trial court and counsel, this matter was statutorily triable as in equity. The Code 1966, Section 633.33. It is accordingly reviewable de novo. Ia.R.Civ.P. 334, 344(f) (7); In re Estate of Sheimo, 261 Iowa 775, 778, 156 N.W.2d 681.
II. In matters such as this it is well established the intent of testatrix is our polestar, to be gleaned from a consideration of language employed in the will as a whole, and other relevant factors. McCarthy v. McCarthy, 178 N.W.2d 308, 310 (Iowa); In re Estate of Lamp, 172 N.W.2d 254, 256--257 (Iowa).
At the outset it is evident, relative placement of the term 'per stirpes and not per capita' is of more than minimal significance.
Noticeably testatrix did not say the residuum of her estate would pass per stirpes and not per capita to the following named persons. Rather she devised and bequeathed same to the parties designated followed by the qualifying provision. This means testatrix did not intend the stirpital clause be applied in the primary sense as a limitation on the bequest to those named. See Johnson v. Swann, 211 Md. 607, 126 A.2d 603, 606 (Md.); St. Louis Union Trust Company v. Greenough, 282 S.W.2d 474, 478 (Mo.); In re Title Guarantee & Trust Co., 159 App.Div. 803, 144 N.Y.S. 889, 893, aff'd 212 N.Y. 551, 106 N.E. 1043; Annot. 13 A.L.R.2d 1023, 1041; 96 C.J.S. Wills § 709.
We find Paragraph IV clearly expresses an intention that in the event any one or more of those specifically identified should die, then secondarily, their respective heirs would take per stirpes the share which such deceased party would have received if living.
Stated otherwise, the term 'per stirpes' as here employed by testatrix was not made applicable to the named legatees, being used only with regard to secondary or substituted beneficiaries in event of a primary legatee's death. See Johnson v. Swann, Supra; In re Squires' Will, Sur., 102 N.Y.S.2d 735, 740.
An examination of the will in its entirety reveals no expression of a contrary intent.
III. This finding is further supported by the fact that there could in no event be a true stirpital distribution as between the six named parties.
As this court said in Clarken v. Brown, 258 Iowa 18, 26, 137 N.W.2d 376, 381:
In that regard it is self-evident, Hilda M. Luke and Mildred C. Luke, daughters-in-law, could not take from Isabell Luke by stock or as lineal descendants. See The Code 1966, Sections 633.210--633.226. Resultantly the adoption of any view to the effect testatrix intended the Paragraph IV gift be to those named, per stirpes, would necessitate a strained interpretation under which the named daughters-in-law would, in effect, be either excluded or placed in a separate class by themselves. Nothing in the will indicates any such intent. Rather the words used specifically identify those who are to take as individuals, not by right of representation. See 4 Bowe-Parker: Page on Wills, § 36.11. Furthermore an examination of the record discloses nothing which dictates adoption of any other conclusion.
We now hold testatrix clearly intended the residual estate described in Paragraph IV of her will pass to those named, per capita, the per stirpes phrase being used only as a provision for substitute legatees. Trial court erred in holding otherwise.
IV. Next to be considered is trial court's order relative to distribution of rent proceeds between decedent's estate and remaindermen.
In this area we deal not with property owned by Isabell Luke, decedent, but rather that realty in which she held a life estate under the terms of her deceased husband's will.
The remaindermen here involved are Verlyn D. Bradley, Hilda M. Luke, Delbert D. Luke, and Alfred C. Luke.
Prior to trial all parties stipulated, in part:
'(a) On the farm of Alfred C. Luke, the Landlord Isabell Luke was to receive two-fifths of all crops with no cash rent.
'(b) On the three hundred twenty acre farm, the lease provided for crop share on a fifty-fifty basis between the Landlord and Tenant and with cash rent.
'(c) All leases ran from March 1st to March 1st.
'(d) The oats and beans had been combined at the time of the death of Isabell Luke.
'(11) That any pro-rata division of either income or expenses as between Verlyn D. Bradley and Hilda Luke and Delbert D. Luke should be pro-rated on the basis of fifty-two per cent to Hilda Luke and forty-eight per cent to Verlyn Bradley with respect to the three hundred twenty acre tract, which was divided between them in accordance with the Last Will and Testament of Albert C. Luke.'
It thus appears Hilda M. Luke, Delbert D. Luke, and Verlyn D. Bradley are remaindermen in relation to the three hundred twenty acre farm referred to above.
By reason of the fact that all individuals concerned here argue only the matter of crop rentals, we shall confine ourselves accordingly. Ia.R.Civ.P. 344(a)(4) (Third). See Farm Service Co. of Emmetsburg v. Askeland, 169 N.W.2d 559, 560 (Iowa).
At common law, where a tenant for life gave a lease rendering a yearly rent, and died in course of the year before the day appointed for payment of rent, it could not be apportioned because the contract was an entirety. But the tenant might electively quit the premises on the death of his lessor, paying no rent to anyone for occupation since the last day appointed for payment of rent. See Wilson v. Hagey, 251 Ill. 452 96 N.E. 277, 278; 51 Am.Jur.2d, Life Tenants and Remaindermen, § 133; Annot. 6 A.L.R. 1506, 1508.
Apparently what is now designated § 562.1, Code 1966, was enacted for the...
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