Odens v. Veen
| Decision Date | 06 June 1944 |
| Docket Number | 46479. |
| Parties | ODENS et al. v. VEEN et al. (SCHOON, Intervener). |
| Court | Iowa Supreme Court |
Corcoran & Kennedy, of Sibley, for appellants.
Riter & Henneberg, of Rock Rapids, for appellees, and for intervenor appellee.
The sole issue involved in this partition action is the construction and interpretation of the following clause in the will of Louie Getting who died December 13, 1908 leaving a wife and six children:
The widow married Henry B. Schoon on November 29, 1932. One of the daughters of Louie and Diertje Getting, who was named Diertje, married Henry C. Odens. She died July 6, 1930, and the plaintiffs are her heirs at law, who contend that under the above will the widow merely received a right to the use and occupancy of the realty until her remarriage and upon the happening of that event, the children of Louie and Diertje Getting received the realty. The living children, and part of the grandchildren, as defendants, and Diertje Getting Schoon as intervenor, contended that under the terms of the will the widow was to have the use and income of the property as long as she remained unmarried and that upon her remarriage she would then have her one-third distributive share in the property. The trial court so construed the will and the plaintiffs appeal.
The record shows that the will was drawn two days before Louie Getting died. Diertje Schoon, the intervenor, testified that she talked with her husband after he executed the will and he told her that he had given her everything as long as she stayed his widow and after that if she married again then she would only get one-third. She testified that the banker who was the scrivener of the will told her "that was the way Mr. Getting wanted it." There were no objections to either the testimony or the competency of the witness. She was the executrix of the will and the record shows that she took the full income from the realty until her marriage to Schoon in 1932. Upon her remarriage she continued to look after the farm, retaining one-third of the income and accounting to the children and grandchildren for the remaining two-thirds.
This process of distribution continued until the Fall of 1942 when the farm was tentatively sold and this question was raised by her son-in-law, Henry Odens. The record shows that she made distribution to Odens as guardian of his children during this period and he did not assert any rights to the realty as an individual nor did he raise any question of Mrs. Schoon's right to retain one-third of the income.
I. The plaintiffs in their written brief state that the "sole issue involved is the interpretation of the will." We agree that this is the only issue and consequently other arguments found in the brief based on a "presumption that the devise was in lieu of dower" or that her "acts and conduct and long acquiescence in the testamentary provisions" constituted an election to take under the will, are not helpful. There is no doubt that under the record here she desired and intended to take under the will as construed to her by the scrivener and her husband and as construed by her with the apparent satisfaction of all concerned, until 1942. Nor do we need to comment on plaintiffs' argument that the language of the will is unambiguous and the court has therefore no jurisdiction to construe the will, save to point out that plaintiffs alleged in their petition that there was some doubt as to the true construction of the will.
II. The sole function of the court, when the testator's intention is not clearly expressed, is to endeavor to ascertain his intention from the will and any other circumstances existing at the time the will was drawn. In re Bunting's Estate 220 Iowa 186, 261 N.W. 922, 923. Precedents are of little value. When we are groping for the testator's intent, we receive but little help from...
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