Palmer v. Evans

• Decision Date: 12 November 1963
• Docket Number: No. 51137,51137
• Citation: 124 N.W.2d 856,255 Iowa 1176
• Parties: Daniel David PALMER, Appellee and Cross-Appellant, v. Ralph EVANS, Herbert Hender, and William D. Wagner, Executors of the Estate and Trustees under the Last Will and Testament of Bartlett J. Palmer, also known as B. J. Palmer, deceased, William P. Brownell, Trustee under the Last Will and Testament of Bartlett J. Palmer, also known as B. J. Palmer, deceased, and The B. J. and Mabel H. Palmer Memorial, a corporation, Appellants and Cross-Appellees.
• Court: Iowa Supreme Court

Page 856

124 N.W.2d 856

255 Iowa 1176

Daniel David PALMER, Appellee and Cross-Appellant, v. Ralph EVANS, Herbert Hender, and William D. Wagner, Executors of the Estate and Trustees under the Last Will and Testament of Bartlett J. Palmer, also known as B. J. Palmer, deceased, William P. Brownell, Trustee under the Last Will and Testament of Bartlett J. Palmer, also known as B. J. Palmer, deceased, and The B. J. and Mabel H. Palmer Memorial, a corporation, Appellants and Cross-Appellees.

No. 51137.

Supreme Court of Iowa.

Nov. 12, 1963.

Rehearing Denied Jan. 14, 1964.

[255

Iowa 1178] Lane & Waterman, and Doerr, Dower & Rehling, Davenport, for appellants and cross-appellees.

Betty, Neuman, Heninger & McMahon, and Lambach, Shorey and Plath, Davenport, for appellee and cross-appellant.

SNELL, Justice.

This is an interlocutory appeal, perfected with permission, (R.C.P. 332) in a Declaratory Judgment action (Division XI R.C.P.), from the rulings on Points of Law tendered by the pleadings and motions (R.C.P. 105, 58 I.C.A.).

The issues arise from an attack upon a will and the administration of an estate in the process of probate in Scott County. The issues involve the application of and the right to invoke the Iowa mortmain statute, the Rule against Perpetuities, the cy pres doctrine, the rules of will construction, plaintiff's right and standing to assert his claimed rights, and waiver and estoppel.

The serveral issues have been exhaustively researched and ably argued by counsel. Each of the tendered issues would be a challenging question for discussion and worthy of determination but we will in the main limit our discussion to the matters necessary for decision of the case.

Bartlett J. Palmer, a man of wealth, a resident of Iowa, died testate, on May 27, 1961. He was a widower survived by a son, plaintiff herein. Decedent's will has been admitted to probate. Executors and trustees nominated therein have qualified and are among the defendants herein.

Articles I, II and III of the will are not material to this appeal.

Article IV expresses testator's appreciation of his associates, the purposes prompting the provisions of the will, and the belief that decedent's son had 'been abundantly provided for through the provisions made for him during the lifetime of wife and myself and by the will of my late wife, through both of which he will receive for practical purposes substantially the entire fortune accumulated through our efforts and the efforts of those whom I now desire to reward.' This is not very important except to show that the will was not a deathbed conclusion resulting from the kind of solicitation some authorities say mortmain statutes were intended to discourage.

Articles V and VI make specific bequests not material here.

Articles VII, VIII and IX provides for the ultimate disposition of certain personal property and interests in real estate all tied in and consistent with the subsequent provisions of the will.

Article X is the real battle ground in the case. It provides:

'I give, devise and bequeath all of the rest, residue and remainder of my estate, * * * [extensive references] (all of which property is hereafter referred to as the 'Trust Estate') to the Trustees hereinafter designated, and to their successors and assigns, for the following uses and purposes:

'(a) It has been my long and cherished aim and purpose to establish a museum in memory of my wife, Mabel H. Palmer, and me, and to aid in the perpetuation of the Chiropractic philosophy, science and art. Therefore, to effectuate my aim and purpose I direct the Trustees, as soon as possible after my decease, to cause a nonprofit corporation to be organized under the laws of the State of Iowa, to be known as 'The B. J. and Mabel H. Palmer Memorial' with such powers, purposes, by-laws and provisions applicable to the operation, management and perpetuation thereof as they shall deem to be in the best interests of the public, and for the advancement of the Chiropractic philosophy, science and art, and upon the organization thereof, to transfer, convey and deliver the Trust Estate or the proceeds of sale or other disposition thereof to said corporation. It is my desire that, to the extent legally permissible and economically feasible, the museum be housed in the property in Davenport, Iowa, now constituting my residence and in such additions thereto as may be deemed necessary, and that if said property is not made available therefor that suitable quarters be purchased or erected for the purposes of said museum. It is further my desire that my various collections, art treasures, books, contents of my Davenport home and of 'Little Bit O' Heaven', be housed in said museum. Any funds of said corporation not required for the establishment, operation, perpetuation and purposes of the museum shall be used to advance the Chiropractic philosophy, science and art. No part of the net earnings of said corporation shall inure to the benefit of any private shareholder, member or individual and no substantial part of the activities thereof shall be the carrying on of propaganda, or otherwise attempting to influence legislation.

'(b) Said Trustees shall select the initial directors, trustees or officers of said corporation, which may include themselves or any of them, fix their tenure of office, determine the method for selection or designation of successor directors, trustees or officers, determine qualifications for membership in said corporation, if any, and generally shall perform such other acts as shall be necessary in order to provide for the organization thereof, its management and operation. If my son, Daniel David Palmer, or my daughter-in-law, Agnes Palmer, as the case may be, shall agree to transfer his or her remainder interest in the property of my wife, referred to in Article VII hereof, to said corporation, then the Trustees shall designate him or her as one of the directors or trustees of said corporation if he or she desires to serve as such.'

Article XI provides:

'I hereby expressly authorize and empower my Executors with respect to my estate and my Trustees with respect to the Trust Estate herein created, severally and to the extent applicable to each, in their sole and absolute discretion:

'1. To hold, retain, manage, improve, sell, exchange, transfer, convey, lease for any term of years (although such term extends beyond the duration of the Trust), mortgage or otherwise encumber, purchase, acquire, deal with or dispose of any property of my estate or the Trust Estate; to invest or reinvest such property in any securities or property whatsoever, without limitation of any statute or rule of law relating to investments by fiduciaries; to make contracts, execute and deliver good and sufficient deeds, transfers and conveyances; to borrow money and extend credit on behalf of my estate or the Trust Estate; to deposit funds in any bank or banks; to keep such portion of the funds univested as they may deem expedient; to hold securities in the name of a nominee or nominees; to collect all income and pay all expenses of administering my estate or the Trust Estate, including reasonable compensation of the Executors and Trustees; to employ agents, employees and attorneys and fix their compensation; to prosecute, defend and compromise any claim of or against my estate or the Trust Estate; and generally to exercise all rights or powers with respect to such property which may be lawfully exercised by persons owning similar property in their own right. The Executors and Trustes shall not be required to report to or obtain the approval of any court in performing their duties hereunder or in administering my estate or the Trust Estate.

'2. No person dealing with the Executors or Trustees shall be bound to see to the application of any purchase money or other consideration or any money loaned under mortgage or pledge, or to inquire into the power and/or authority of the Executors or Trustees or into the validity, expediency or propriety of any sale, option, assignment, transfer, exchange, conveyance, mortgage or pledge of any or all of the assets or property of my estate or the Trust Estate.' The extremely broad and unrestricted authority of the executors and trustees contained in Articles X and XI should be kept in mind.

Articles XII, XIII, XIV, and XV provide for the payment of inheritance and estate taxes from the residuary estate, nominate executors, trustees, successors in interest and identify individuals.

I. Mortmain statutes are not new to the law. They have been enacted and enforced since the time of the Magna Charta. From jurisdiction to jurisdiction and from time to time the wording has varied, apparently having different specific limitations in mind, and resultantly with varying results.

The Rule against Perpetuities is also venerable with age but more uniform in its operation.

II. The Iowa Wills statute is found in Section 633.1, Code of Iowa, I.C.A. It provides:

'Disposal of property by will Any person of full age and sound mind may dispose by will of all his property, subject to the rights of homestead and exemption created by law, and the distributive share in his estate given by law to the surviving spouse, except sufficient to pay his debts and expenses of administration.'

Under this statute the power of disposal by will is complete, subject only to statutory limitations.

What is commonly called the Iowa mortmain statute is found in Section 633.3, Code of Iowa, I.C.A. It provides:

'Limitation on disposal by will No devise or bequest to a corporation organized under the chapter relating to corporations not for profit or to a foreign corporation of a similar character, or to a trustee for the use or benefit of any such corporation, shall be valid excess of one-fourth of the testator's estate after the payment of debts, if a spouse, child, child of deceased child, or parent survive the testator.'

The Iowa Rule...