Martin v. Beatty

• Decision Date: 12 June 1962
• Docket Number: No. 50649,50649
• Citation: 115 N.W.2d 706,253 Iowa 1237
• Parties: Fred A. MARTIN, Appellant, v. Harry BEATTY, Vera Garber, Blanche Bensch, Gertrude Johnson, Floyd Beatty, and Washington County, Iowa, Appellees.
• Court: Iowa Supreme Court

Page 706

115 N.W.2d 706

253 Iowa 1237

Fred A. MARTIN, Appellant, v. Harry BEATTY, Vera Garber, Blanche Bensch, Gertrude Johnson, Floyd Beatty, and Washington County, Iowa, Appellees.

No. 50649.

Supreme Court of Iowa.

June 12, 1962.

Estella Harmed Wilkins, Peoria, Ill., and Cook & Drake, Glenwood, for appellant.

Livingston, Day & Meeker, Washington, for appellees.

LARSON, Justice.

While this is a real estate partition suit brought by plaintiff, one of the beneficiaries under his grandfather's will, against the other benefited grandchildren, the nub of the controversy is whether the testamentary beneficiaries took interests in the property per capita, as the trial court held, or per stirpes.

The relevant facts are not in serious dispute. S. C. Story died testate on April 20, 1899, at age 85. His wife, Emma Story, died August 6, 1907. They had two daughters, Eudora and Lizzie. Eudora married Swayne Beatty in 1888 and they had six children, five of whom are defendants and the parties referred to as appellees herein, the sixth having died unmarried without issue July 15, 1918. Lizzie married Leon B Martin in 1892 and they had two children, one of whom is the plaintiff-appellant, Fred A. Martin, and the other died in infancy prior to the dath of S. C. Story.

S. C. Story left a will and codicil which were admitted to probate on the 5th day of September, 1899. The will provided for the payment of debts and funeral expenses, gave to his wife a life estate in all his property subject to a payment of $100.00 to each of the daughters, Eudora and Lizzie, and then provided:

'Fourth--And I direct that at the death of my wife Emma E. Story my said estate be divided equally between my two children Eudora B. Beatty and Lizzie D. Story each to share and share alike, but for their natural lives only.

'Fifth--And at the death of my two children, Eudora and Lizzie, I direct that my said estate be divided equally amongst the children of my said daughters Eudora and Lizzie each of said children to share and share alike.'

The codicil reaffirmed the life interests granted to the two daughters in the original will and also provided that their interests should 'not be assigned, transferred or mortgaged to any person during their lieftime, but shall be enjoyed and occupied exclusively by themselves, this provision not being intended to prevent the leasing of the same or enjoyment of the proceeds therefrom.'

It will not benefit this opinion to set out the description of the real estate in Washington County, Iowa, owned by S. C. Story at the time of his death, and so reference to that description in the trial court's decree will suffice.

The record discloses that subsequent to the death of their mother in 1907, Eudora and Lizzie executed a contract, Exhibit 7, dated March 29, 1915, which constituted the basis for the division between them as life tenants of the use and income from the real estate. It further discloses that upon the death of Eudora on January 26, 1922, the arrangement continued with Swayne receiving the portion assigned to Eudora. When Swayne died on April 6, 1940, Lizzie claimed and received the entire income from this real estate until July 25, 1949. At that time one of the children of Eudora found a copy of the contract, Exhibit 7, among her father's papers, consulted a lawyer as to the rights of Eudora's offspring, which after some negotiations with the plaintiff, Fred A. Martin, and his lawyer resulted in a 'Settlement Agreement', Exhibit 6, dated July 25, 1949. In this agreement signed by Fred A. Martin and his mother, Lizzie Martin, they were designated as first parties, and the living children of Eudora Beatty, defendants herein, were second parties. By its terms Lizzie surrendered to the Beatty children the net rental from all of the real estate for the crop year 1948, and it appeared Fred A. Martin approved the establishment of the interest of each grandchild of S. C. Story in the real estate as one seventh. The Beatty children in turn released and abandoned all claim for a portion of the rentals from 1940 to the crop year of 1948. This agreement further provided that after March 1, 1949, and until her death, Lizzie should have the right to the use, occupancy and possession of and all income arising from a specified portion of the real estate, and that the Beatty children collectively should have the same right as to the remaining specified portion. Lizzie Martin survived her husband and died on the 21st day of March, 1959.

The trial court found the acknowledgment by Fred A. Martin that he held but a one-seventh interest in the remainder was one of the primary motivating reasons for the execution of the agreement by the Beatty children, and that as a result of its execution by all parties the contemplated litigation by the Beatty children for an accounting against Lizzie was not pursued. It also found Mr. Martin had competent advice and was not unlearned in settlement matters, being an experienced casualty adjuster. Martin did testify at the time he signed that he believed his share in his grandfather's property should have been a one-half interest, and that he had been advised his signing would fix and settle his interest once and for all, but his desire to spare his mother further annoyance and litigation caused him to execute the agreement. As plaintiff herein, he now claims a one-half interest on the grounds that the will of S. C. Story so provides, and that the execution of the settlement agreement was invalid. In view of the fact that we affirm the trial court's judgment holding he took per capita, we need not discuss the second contention. That issue appears moot, for the terms of the agreement merely reflect an interpretation of the will which we hold was correct.

As we understand appellant, it is his position that the provisions in the fourth and fifth paragraphs were not so clear that the judicial rules of construction should not apply, and that if they were applied a holding was required that the children of Eudora and Lizzie would take per stirpes and not per capita. Neither contention can be sustained. It was the trial court's conclusion that under the facts presented 'it would be improper to distort or nullify an intention so clearly expressed by applying arbitrary or technical rules of construction.' We agree, although we do not find an application of technical rules of construction would necessarily distort or nullify the testator's expressed intention here.

I. Although there is some confusion among authorities as to the import of certain words used by a testator to indicate his intention, nearly all authorities across the land agree that the determining factor in ascertaining whether beneficiaries under a will take per capita or per stirpes is the intention of the testator, and that this intention is to be found from the language used as applied to all the surrounding circumstances and conditions present in the mind of the testator at the time the will was made. Gilbert v. Wenzel, 247 Iowa 1279, 1281, 78 N.W.2d 793, and citations; Wright v. Copeland, 241 Iowa 447, 455, 41 N.W.2d 102, 107, land citations; Gaughen v. Gaughen, 171 Neb. 763, 107 N.W.2d 652; 3 Page on Wills, Lifetime Ed., § 1072; annotations 16 A.L.R. 15, 78 A.L.R. 1385, 126 A.L.R. 157, 13 A.L.R.2d 1023; 57 Am.Jur., Wills, § 1291. Of course a division of an estate per capita means by the number of individuals share and share alike, as opposed to a division per stirpes where those of more remote degree of kindred to the testator take by right of representation, or substitutionally. Gilbert v. Wenzel, supra; Safe Deposit & Trust Co. v. Lycett, 153 Md. 443, 138 A. 225; 3 Page on Wills, Lifetime Ed., § 1070; 70 C.J.S. Per, p. 448.

True, as appellant contends, many authorities hold where there is doubt it should be resolved in favor of per stirpes distribution, for it is more in keepting with the laws of descent. Claude v. Schutt, 211 Iowa 117, 233 N.W. 41, 78 A.L.R. 1375. Others hold the presumption, although not a strong one, favors a per capita distribution. Annotations, 78 A.L.R. 1387. Under the wording of the will before us, we are not in doubt. Furthermore, resort to inferences or presumptions is unnecessary here, for the natural, usual and conventional meaning of the words used makes testator's intention amply clear. The words used clearly describe those who are to take. The gife made is direct to individuals, not by right of representation. The will provides for an equal division between beneficiaries, not for an equal division between the two daughters and then a division of each half to their respective children. Gilbert v. Wenzel, supra. It is uniformly recognized by authorities that words of a will are used in their natural, usual, popular and conventional meaning. In re Estate of Syverson, 239 Iowa 800, 807, 32 N.W.2d 799, and many citations. We have repeatedly said 'that the words of the testator will be given effect according to the approved usage of the language, unless the context or the peculiar circumstances under which the instrument was executed make it reasonably certain that the words were employed by him in some other or more restricted or more enlarged sense.' Anderson v. Wilson, 155 Iowa 415, 418, 419, 136 N.W. 134, 135. None appear herein.

It is, of course, true that rules of construction of wills will be considered when they may be an aid to the court in ascertaining the intent of the testator, but they must be used to clarify, not confuse, the intent issue. Here, we are inclined to agree with the trial court's finding that the wording of the will itself expresses the testator's evident intent, and that no arbitrary or technical rules of construction, no matter how sound or wise they are, will prevail. In re Estate of Pottorff, 216 Iowa 1370, 1373, 250 N.W. 463. Obviously the court may not make a will for the testator, nor impose upon the will a forced or unnatural construction to...