Maske's Estate, In re

• Decision Date: 11 November 1952
• Docket Number: No. 48175,48175
• Citation: 55 N.W.2d 474,243 Iowa 1394,36 A.L.R.2d 285
• Parties: , 36 A.L.R.2d 285 In re MASKE'S ESTATE. WALTERS et al. v. MEHAFFEY et al.
• Court: Iowa Supreme Court

Page 474

55 N.W.2d 474

243 Iowa 1394, 36 A.L.R.2d 285

In re MASKE'S ESTATE WALTERS et al. v. MEHAFFEY et al.

No. 48175.

Supreme Court of Iowa.

Nov. 11, 1952.

Donnelly, Lynch, Lynch & Dallas, Cedar Rapids, for appellants.

Livingston & Day, Washington, for appellees Alice Mehaffey, John K. Mehaffey, Mrs. Nellie Huff, Mrs. Merna Taylor, Mrs. Betty Mulcahy Hora, Daryl Vondraska, and Mrs. Ardis Phelps.

Carlton C. Wilson, Washington, for appellees Ferd E. Skola, executor of the will of Paul L. Maske, deceased, and Ferd E. Skola, executor of the will of Eva Maske, deceased.

GARFIELD, Justice.

The question presented is whether the widow's statutory share of one third, following her refusal to take under the will, should be taken wholly from residuary legacies as the trial court held, or ratably from all legacies as the residuary legatees (appellants) contend. This in turn depends upon the meaning of section 633.14, Code 1950, I.C.A.

The issue arose upon the executor's petition in probate for construction of the will and answers thereto, respectively, of the residuary legatees who are relatives of testator and the pecuniary (general) legatees who are relatives of the widow. The real contest is between these two sets of legatees. The facts were stipulated. Only a law question is presented.

Testator died in April, 1950. The will bequeaths a life estate to the widow and also states that if the income should be insufficient to provide her with the comforts of life she shall have the right to use such of the principal as may be necessary to provide the comforts of life. Item 3 of the will states that upon the widow's death the remainder of the estate is bequeathed in the following manner: Here follow six pecuniary bequests totaling $22,600 to relatives of the widow. Item 3 then says, 'After giving effect to the above named bequests, the * * * remainder of my property is to be divided into equal shares for' certain named relatives of testator.

The widow refused to take under the will and thereby became entitled to a third of the estate. She died in January, 1951. About $48,000, less executor's and attorney's fees and court costs, is to be distributed, first to satisfy the widow's share and the remainder to the legatees named in item 3. As a result of the widow's election the amount for distribution is about $16,000 (minus one third the expenses and costs of administration) less than it would have been if the widow had elected to take under the will.

Appellees (the widow's relatives) invoke the rule that where the estate is insufficient to pay all obligations and legacies, unless the will expresses a contrary intent, legacies which are mere bounties, not based upon a consideration (as in lieu of dower or in payment of a debt), abate in this order: (1) residuary legacies, (2) general legacies, and (3) specific legacies. In re Estate of Van Wechel, 241 Iowa 513, 516, 41 N.W.2d 694, 696, and citations. To 'abate,' as here used, means to reduce a legacy because of the insufficiency of the estate to pay all debts, charges and legacies in full. Id. at page 515 of 241 Iowa, at page 695 of 41 N.W.2d, and citations.

It is obvious that under this rule, if it is applicable here, appellees are entitled to the payment of their legacies in full since they are general legacies and the widow's statutory share, frequently called dower or distributive share, as explained in In re Estate of Finch, 239 Iowa 1069, 1090, 1091, 32 N.W.2d 819, 829, 3 A.L.R.2d 1403, 1417, 1418, must be taken wholly from the residuary legacies to appellants. We may assume, without deciding, that if it were not for Code section 633.14, I.C.A., the above rule would be applicable to such a case as this where the insufficiency of the estate to pay all legacies in full is due to the widow's renunciation of the will.

Section 633.14 provides: 'All claims which it becomes necessary to satisfy, and all amounts necessary to be paid from the estate of a testator in disregard of or in opposition to the provisions of a will, shall be taken ratably from the interests of heirs, devisees, and legatees.'

The widow's statutory share is clearly an amount 'necessary to be paid * * * in disregard of or in opposition to the * * * will' within the meaning of 633.14. McGuire v. Luckey, 129 Iowa 559, 561, 562, 105 N.W. 1004, 1005; Bening v. Eischeid, 240 Iowa 1294, 1297, 39 N.W.2d 299, 301.

Section 633.14 together with 633.13 are an outgrowth of sections 1284, 1285, Code 1851. Section 633.13, Code 1950, I.C.A., states that a child born after a will is made, who is unprovided for by any settlement and neither provided for nor mentioned in the will, shall inherit the same interest as though no will had been made and said interest 'shall be taken ratably from the interests of heirs, devisees, and legatees.' (This is the identical language found at the end of 633.14.)

Section 1284, Code 1851, stated 'Posthumous children unprovided for by the father's will shall inherit the same interest as though no will had been made.' And section 1285, Code 1851, provided: 'The amount thus allowed to a posthumous child as well as that of any other claim which it becomes necessary to satisfy in disregard of or in opposition to the contemplation of the will, must be taken ratably from the interests of heirs, devisees, and legatees.' (Emphasis added.)

Section 1285, Code 1851, is a legislative recognition that the interest of a posthumous child unprovided for by the will is a claim 'in disregard of or in opposition to the * * * will.' We perceive no basis for holding that the widow's statutory share upon renunciation of the will is not also 'in disregard of or in opposition to the * * * will.'

We think that under the plain language of section 633.14 the widow's statutory share here must be taken ratably from the interests of all legatees and not wholly from the residuary legacies alone. The effect of our holding is that section 633.14 is not declaratory, but in derogation, of the common law rule (heretofore mentioned) governing abatement of legacies, where the insufficiency of the estate to pay all legacies is due to the widow's rejection of the will. In other words, we think the statute was intended to change the common law rule as applied to such a case as this rather than to preserve it.

Of course many statutes are merely declaratory of the common law. It seems improbable, however, section 633.14 is of that kind. If it was intended merely to provide for prorating among the residuary legatees, not all legatees, the share of a widow who has renounced the will the statute was unnecessary. McGuire v. Luckey, supra, 129 Iowa 559, 562, 105 N.W. 1004, 1005, indicates the statute was intended to effect a change in the common law rule as applied to a case of this kind.

Irrespective of statute, it is a general rule applicable to cases of this type that a widow's election to take against the will defeats the testator's intention in part and the court will try to ascertain his primary intention and carry it into effect as nearly as possible. In re Estate of Povey, 271 Mich. 627, 261 N.W. 98, 99 A.L.R. 1183, 1185, and citations. See also Bening v. Eischeid, supra, 240 Iowa 1294, 1296, 39 N.W.2d 299, 301; In re Estate of Rawlings, 81 Iowa 701, 707, 47 N.W. 992; Note Ann.Cas.1913E, 416, 417.

While we base our decision primarily upon the plain language of section 633.14 we believe the result we have reached more nearly carries out testator's intent than does the trial court's order and is much more equitable.

Under the stipulated facts, if the widow had taken under the will the estate would have been divided almost equally, subject to her life estate, between the two sets of legatees. (The will was made two years and nine months before testator's death.) Apparently testator intended a substantially equal division between the widow's relatives and his own. That is a reasonable and equitable disposition of the estate. If the widow's share is taken ratably from all legacies that plan is carried out as nearly as possible. If, however, such share is taken wholly from the residuary legacies testator's relatives will receive only a little more than one fourth the estate and the widow's relatives will take the rest.

Appellees strongly rely on the language of the will which provides for the residuary bequests: 'After giving effect to the above named bequests (to appellees), the * * * remainder of my property is to be divided into equal shares for' appellants. It is argued this clearly shows testator intended the pecuniary bequests should be paid before the residuary bequests.

We feel the quoted language has no other effect than any other residuary clause in a will. It does not indicate testator intended the pecuniary legacies to be paid in full at the expense of the residuary legacies in the event the widow renounced the will. There is no direction in the will as to how the estate is to go in such event. That direction is contained in section 633.14....