Lytle v. Guilliams

• Decision Date: 07 March 1950
• Docket Number: No. 47582,47582
• Parties: , 16 A.L.R.2d 1377 LYTLE et al. v. GUILLIAMS et al.
• Court: Iowa Supreme Court

Page 668

41 N.W.2d 668

241 Iowa 523, 16 A.L.R.2d 1377

LYTLE et al. v. GUILLIAMS et al.

No. 47582.

Supreme Court of Iowa.

March 7, 1950.

Parrish, Guthrie, Colflesh & O'Brien, of Des Moines, and Charles D. Van Werden, of Winterset, for appellants.

Daniel J. Gallery, of Winterset, for appellees.

Earl R. Shostrum, Des Moines, for Olive M. Kale, Loren E. Kale and Marvin D. Kale, appellees.

Charles D. Van Werden, of Winterset, for Blanche Roberts Dowler and Asa Dowler, defendant-appellees.

OLIVER, Justice.

Wesley Roberts died in 1910. His will was made a few days earlier. It gave to his son Harry his farming tools and equipment, to a daughter Myrtle Lytle six head of cattle then in the possession of Myrtle and her husband and their note for $100, and to the other daughter, Cora Slinker, $300 in cash. It provided also:

'5th. I give, devise and bequeath to my wife, Mary Roberts, the balance of my personal property, and all of my real property which consists of * * * (Legal description of a house in St. Charles and the 120 acre Iowa farm here involved) of which she is to have full control and to use her natural life time, and it is my wish that no real estate be sold so long as she may live.'

'7th. I will that at the death of my wife that the real and personal property be divided among my children as follows: I will to Harry Roberts all the personal property of my estate that may be remaining at the death of my wife, and all the real property above mentioned; and that out of the property above mentioned is to be paid to Cora Slinker, Two Thousand Seven Hundred ($2700.00) Dollars, and to Myrtle Lytle, Two Thousand Seven Hundred ($2700.00) Dollars.'

Cora Slinker died in 1920, Myrtle Lytle in 1929 and Harry Roberts in 1939. Testator's widow, Mary Roberts died in 1947, aged ninety seven years. Apparently no personal property belonging to the estate remained at her death. At the time of testator's death in 1910 Myrtle Lytle had three, and Cora Slinker two children. The record does not show the value of testator's estate at that time. A witness estimated the farm was worth $14,400 in 1941. He testified the house was worth $1,000.

In 1928 Mary Roberts and Harry Roberts gave a mortgage for $2,000 on the one hundred twenty acre farm. In 1939 the mortgage was foreclosed by C. C. Guilliams. None of the heirs, representatives or successors in interest of Cora Slinker or Myrtle Lytle were made parties to that action. Guilliams bid in the farm for $2,500. Sheriff's deed issued to him in 1942. He died in 1945. Neither of the $2,700 charges set up against the real estate by Par. 7 of the will was ever paid. In 1948 this action was instituted to subject the real estate thereto. Plaintiffs and intervenors were the heirs, successors and legal representatives of Cora Slinker and Myrtle Lytle. Defendants were the successors in interest of C. C. Guilliams and Harry Roberts. The principal contentions of defendants were:

(1) That the interests of Cora Slinker and Myrtle Lytle were contingent and had lapsed on the death of each beneficiary before her legacy vested.

(2) That under section 614.17, Code of Iowa 1946, I.C.A., this action was barred by the failure to file statements of such interests within one year after July 4, 1943.

The trial court found against defendants. The judgment established the charges against the real estate and ordered it sole to satisfy them. The successors in interest of C. C. Guilliams have appealed.

I. The purpose of construing a will is to ascertain the testator's intent. This must be determined from the will itself and from nothing else, if its language is plain and unambiguous. In re Estate of Eason, 238 Iowa 98, 26 N.W.2d 103; In re Estate of Syverson's, 239 Iowa 800, 804, 805, 32 N.W.2d 799; Westerfelt v. Smith, 202 Iowa 966, 211 N.W. 380. Where the language is clear, both in expression and meaning, rules of construction are inapplicable. In re Estate of Thomas, 220 Iowa 50, 54, 261 N.W. 622.

This will evidences an intention on the part of testator to give the son and each daughter a definite share in his estate, the shares of the daughters to be equal. In the first part of the will is a gift to Myrtle of cattle and a note. It is a fair inference the $300 given to Cora was to equalize this gift. The corresponding gift to Harry was the farm equipment. The gift to Harry of the remainder of the property, subject to the life estate of the widow, corresponded to the gift to each daughter of a $2,700 charge thereon.

The question here is whether these $2,700 gifts vested at testator's death, with their enjoyment postponed during the life of testator's widow. If they were contingent, then, upon the death of either Myrtle or Cora, prior to their vesting, the benefit of her share of the remainder of testator's estate would pass to Harry or his heirs. In effect this would give Harry or his heirs or successors the entire share of either of his sisters who should predecease their mother, to the exclusion of the other sister or her heirs. More particularly it would result practically in the disinheritance by testator of the children of either or both Myrtle and Cora. Such result would not seem to accord with testator's plan of distribution as indicated by the will.

However, appellants contend the following language of the 7th Par. makes the remainders contingent:

'I will that at the death of my wife * * * property be divided among my children as follows: I will to Harry * * * the property; and that out of (it) * * * is to be paid to' Cora $2,700 and to Myrtle $2,700. Appellants rely upon decisions of this court based upon a rule of construction known as the 'divide and pay over' rule, which is in substance as follows: Where the only words of gift in a testamentary disposition of property are found in the direction to divide or pay at a time subsequent to the death of the testator, time is to be taken as of the essence of the gift, and it is future, not immediate, contingent, not vested. The rule has been said to be inapplicable when the postponement of payment is merely for the purpose of letting in an intermediate estate or for the convenience of handling the assets which are the subject matter of the limitation. Restatement of the Law, Property, section 260; Olsen v. Youngerman, 136 Iowa 404, 409, 410, 113 N.W. 938; 57 Am.Jur. 811, Wills Section 1231.

The 'divide and pay over' rule has been severely criticized as tending to impair titles and produce litigation, as often defeating the testator's actual intention, as being artificial and unsatisfactory and as being subject to so many limitations as to tend to confusion. It has been rejected by some courts and is in growing disrepute. 57 Am.Jur. 812, Wills Section 1231; Annotation in 144 A.L.R. 1155 to 1172. Commentaries on the Law of Real Property (1947), William F. Walsh, Section 316, Vol. 3, page 244, states:

'Technically without substance resulting in a rule of construction which defeats the testator's intent whenever it is applied, is the necessary character of the 'divide and pay over rule' which still persists in some quarters in spite of its quite general repudiation.'

Restatement of the Law, Property, section 260, states the direction to divide and pay over, etc. 'is not a material factor in determining the existence of a requirement of survival to the date of distribution.' The comment is then appended 'a. Rationale. This Section denies the validity and significance of the so-called 'divide and pay over' rule.' The comment states the two recognized exceptions to the rule 'so completely cancel the rule as to leave nothing in either the rule or its exceptions helpful to the construer of a limitation.'

Decisions of this court show much irregularity in the application of the 'divide and pay over' rule. In some decisions which recognize or appear to be based in part upon it, other language of the instrument was sufficient to make the remainders contingent. Among such decisions are Olsen v. Youngerman, 136 Iowa 404, 113 N.W. 938; McClain v. Capper, 98 Iowa 145, 67 N.W. 102; In re Will of Wolber, 194 Iowa 311, 189 N.W. 782; Fulton v. Fulton, 179 Iowa 948, 162 N.W. 253, L.R.A.1918E, 1080; Taylor v. Taylor, 118 Iowa 407, 92 N.W. 71.

Some decisions apply the rule despite its inapplicability due to the fact the postponement of the enjoyment is for the purpose of letting in an intermediate estate. Among these are In re Estate of Phearman, 211 Iowa 1137, 232 N.W. 826, 82 A.L.R. 674; In re Will of Wolber, 194 Iowa 311, 189 N.W. 782; Taylor v. Taylor, 118 Iowa 407, 92 N.W. 71; Fulton v. Fulton, 179 Iowa 948, 162 N.W. 253, L.R.A.1918E, 1080. An editorial note in 8 Iowa Law Bulletin, 111-115 (1923) criticizes the doctrine of these cases and states that where there is a direction to divide to named parties upon the death of the prior devisee for life, there is no uncertainty of the parties to take, no contingency is annexed to the gift different from any vested...