Noe's Estate, In re

• Decision Date: 25 February 1972
• Docket Number: No. 54782,54782
• Citation: 195 N.W.2d 361
• Parties: In the Matter of the ESTATE of Cecil A. NOE, Deceased.
• Court: Iowa Supreme Court

Page 361

195 N.W.2d 361

In the Matter of the ESTATE of Cecil A. NOE, Deceased.

No. 54782.

Supreme Court of Iowa.

Feb. 25, 1972.

Mossman & Grote, by Keith Mossman, Vinton, for executors-appellants.

Richard C. Turner, Atty. Gen., George W. Murray, Sp. Asst. Atty. Gen., Harry M. Griger, Asst. Atty. Gen., for appellee Iowa Department of Revenue.

RAWLINGS, Justice.

Action by executors of Cecil A. Noe's (decedent) estate against Iowa Department of Revenue (Department) for refund of alleged inheritance tax overpayment. Trial court held adverse to executors and they appeal. We affirm.

Decedent, a resident of Benton County, died testate November 13, 1967, survived by his wife Anna, three sons, and two daughters. His estate consisted of personalty worth $51,729.55, joint property and life insurance in the amount of $30,692.89, and real property valued at $233,275.00. Debts, charges and federal estate taxes totaled $53,047.49.

Decedent's will provides his wife receive all personalty absolutely. She is additionally granted a life estate in all real property, remainder to five children, each being devised a specific parcel. Although the will directs payment of all just debts and claims against the estate, it makes no provision as to abatement.

Executors used the personal property bequeathed decedent's wife for payment of the aforementioned estate obligations. They then filed a Final Iowa Inheritance Tax Return, showing tax due of $3,232.08, premised upon abatement of personalty devised to the wife. Department thereafter advised executors to the effect such abatement approach was improper, the correct order of abatement being as provided by The Code 1966, Section 633.436. Accordingly an additional $1,570.59 tax was assessed.

Executors paid this additional assessment, then initiated the present refund action. They have consistently contended abatement should be pursuant to The Code 1966, Section 633.437, i.e., estate obligations should be paid first out of personalty left the surviving spouse, since to abate the real property specifically devised to remaindermen children would defeat decedent's testamentary plan. Although there is some conflict in the record executors contend the Iowa inheritance tax under this approach would, as aforesaid, be $3,232.08.

Department, by answer, again took the position abatement should be governed by § 633.436, i.e., property devised the children be first abated. Iowa inheritance tax thereunder would be $4,802.67.

In denying the refund application trial court found no extraordinary circumstances justifying application of the alternative provisions of § 633.437. From this adjudication executors appeal.

The sole issue instantly presented is whether abatement should be in accord with Code § 633.436 or § 633.437. These legislative enactments are set forth at length in the case of In re Estate of Kraft, 186 N.W.2d 628 (Iowa), and need not be here repeated.

I. Our review is de novo. The Code 1966, Section 633.33; In re Estate of Kraft, Supra.

II. Abatement, in Iowa, is generally governed by § 633.436, which specifically delineates the order in which bequests stand aside in deference to estate claims. The background and intent of this statute was discussed at length in the recent case of In re Estate of Twedt, 173 N.W.2d 545, 547 (Iowa), where we said:

'The section evidences a clear intent on the part of the legislature to protect the interest of the surviving spouse. Each section dealing with property that passes under the will specifically protects the property passing to the spouse down to the vary last source. Then, and then only, does the legislature make the spouse's share subject to debts and charges. (The legacies will already have been eliminated.)

'The Bar Committee Comment found at 47 I.C.A., section 633.436, page 249 reads: 'Adapted from section 184 of the Model Probate Code with codification of Iowa law that share of surviving spouse abates last in the absence of contrary testamentary intent. This section adopts the modern rule of abatement and makes explicit the order in which the share shall abate in the absence of contrary testamentary intent. * * *.' The codification of the preference to the widow springs from such cases as In re Estate of Hartman, 233 Iowa 405, 408, 9 N.W.2d 359, where the court held the appellee (spouse) took under the will as purchaser, hence a specific legacy to nephews and nieces must abate before a general legacy to a spouse who elects to take under the will.'

III. In substance, § 633.437 provides for a contrary order of abatement only in that unusual case where the general scheme provided for in § 633.436 would defeat (1) provisions of the will, (2) the testamentary plan, or (3) the express or implied purpose of the devise. In re Estate of Kraft, 186 N.W.2d at 631; In re Estate of Twedt, 173 N.W.2d 545, 548.

IV. Executors here contend decedent clearly intended all real property ultimately pass intact to his remaindermen children and abatement under § 633.436 would, in effect, defeat that plan. In support of this claimed testamentary intent they point to the life estate granted decedent's wife, the devise of specific parcels of realty to each remainderman, and that portion of decedent's will which provides:

'ITEM III.

'* * *

'(f) In the event that any of the above named children desire to sell their interest in the above described property, I hereby direct that my other children hereinbefore named shall have the option and right to purchase said child's or children's interest in said property prior to said child or children selling said property to any other person. This option shall continue for a period of five years from and after the death of my wife. The purchase price shall be determined by an impartial appraisement, the seller choosing one appraiser, the buyer an appraiser and these two appraisers choosing a third.'

For reasons hereafter stated this contention by executors is to us not persuasive.

V.

'Inceptionally it is well settled, in cases such as this, (1) testator's intent is the polestar and if expressed must control; (2) that intent must be gleaned from a consideration of, (2) All language contained within the will, (b) the scheme of distribution, (c) the circumstances surrounding testator at time the will was executed, (d) existing properly established facts; and (3) technical rules of construction should be resorted to only if the will is clearly ambiguous, conflicting, or testator's intent is for any reason uncertain.' (Emphasis supplied). In re Estate of Miguet, 185 N.W.2d 508, 513 (Iowa).

We find decedent's will neither unusual nor ambiguous. Construed as a whole, it clearly evidences an intent on testator's part to first provide for his wife Anna in event she survived him. This intent is manifested by the bequest to her of all personalty and creation of the life estate. See In re Estate of Kraft, 186 N.W.2d 628 (Iowa). And the fact that decedent devised specific tracts of land to the remaindermen does not detract from this conclusion, being nothing more than evidence of a secondary plan or purpose.

In light of the foregoing we are persuaded executors' contention, premised on inference and an isolated provision of the will, must fail. When a will, construed as a whole, does not in sufficiently clear and explicit terms disclose a contrary intent, provisions for the widow in lieu of dower and other rights must be accorded preference. In re Estate of Artz, 254 Iowa 1064, 1071, 120 N.W.2d 418; Nolte v. Nolte, 247 Iowa 868, 875, 76 N.W.2d 881; In re Estate of Hartman, 233 Iowa 405, 409, 9 N.W.2d 359.

VI. Furthermore, even if the instant will were so ambiguous as to require construction, executors' contention must still necessarily fail. Demonstrably the adoption of executors' proposed construction would, in effect, serve to negate any bequest of personalty to the widow since estate claims exceed the value thereof. Stated otherwise, executors would have us so construe the will as to completely defeat that provision which gives all of decedent's personal property to his wife. In that regard this court has consistently viewed with favor construction of a will which gives effect to every provision contained therein. Watson v. Manley, 257 Iowa 92, 95, 130 N.W.2d 693. Also, as stated in the case of In re Estate of Miguet, 185 N.W.2d at 513:

'* * * if a testamentary provision is reasonably susceptible to two constructions, one making it void or inoperative, the other rendering it valid and effective, the latter must be accepted, the former rejected.' Accord, Layton v. Tucker, 237 Iowa 623, 626, 23 N.W.2d 297.

Briefly stated, the application of executors' theory would obviously destroy the absolute bequest of personalty to decedent's widow. In other words it would unquestionably defeat testator's testamentary plan. We do not elect to adopt that approach.

Affirmed.

All Justices concur, except BECKER, J., who dissents, and HARRIS, J., who takes no part.

BECKER, Justice (dissenting).

I respectfully dissent.

I. Our probate abatement sections 633.436 and 633.437, Code, 1966, have already caused difficult problems of interpretation. In Re Estate of Kraft, 186 N.W.2d 628 (Iowa (1971); In Re Estate of Twedt, 173 N.W.2d 545 (Iowa 1970). There is a difference in emphasis in the two opinions which needs additional attention.

Both cases recognize section 633.436 sets up a clear abatement formula and one of the formula's chief purposes is to protect the surviving spouse. Both cases also indicate section 633.437 provides an exception to the abatement formula under certain circumstances. Where the two cases differ is in the sources examined to consider the circumstances which dictate a different manner of abatement. In both In Re Estate of Kraft, supra, and the case now being decided, the court looks to the will of the testator and no further. In the Twedt case, supra, the trial court and this court looked not only to the will but...