Porter v. Porter

• Decision Date: 19 December 1979
• Docket Number: No. 62314,62314
• Citation: 286 N.W.2d 649
• Parties: Harold D. PORTER, James E. Porter and Donna C. Bingham, Appellees, v. Sena C. PORTER, Wayne E. Nelson, Appellant; and Ramsey Memorial Home.
• Court: Iowa Supreme Court

Page 649

286 N.W.2d 649

Harold D. PORTER, James E. Porter and Donna C. Bingham, Appellees, v. Sena C. PORTER, Wayne E. Nelson, Appellant and Ramsey Memorial Home.

No. 62314.

Supreme Court of Iowa.

Dec. 19, 1979.

DECISION OF COURT OF APPEALS AFFIRMED AND CASE REMANDED.

All Justices concur except REYNOLDSON, C. J., McGIVERIN, REES and HARRIS, JJ., who dissent.

McGIVERIN, Justice (dissenting).

Being unable to agree with the result reached by the majority, I respectfully dissent.

Section 633.271, The Code, provides in part: "If after making a will the testator is divorced or the marriage is dissolved, all provisions in the will in favor of the testator's spouse are thereby revoked."

Corwin E. Porter's will provided in pertinent part:

Article I

In the event my wife, Sena C. Porter, survives me, I hereby give all my property, real and personal, to her absolutely.

Article II

If my wife, Sena C. Porter, shall predecease me, then and in that event I give all my property, real and personal to my (step son), Wayne E. Nelson, or his heirs, share and share alike.

Other will clauses made an alternative gift in the event Wayne Nelson predeceased Corwin and expressed an intent not to leave property to Corwin's children.

Due to section 633.271, the gift to Sena under Article I is revoked.

Next in seeking to determine the effect of the will, we must consider Article II, by which Corwin established a condition precedent, that Sena predecease Corwin, before any gift went to his former stepson, Wayne Nelson.

The marriage of Corwin and Sena was dissolved on December 7, 1976. Corwin had time to change or update his will to meet current circumstances, if he so chose, before he died on July 1, 1977, but he did not.

The real issue here is, where a contingent bequest to the testator's stepson is conditioned upon the spouse predeceasing the testator, does the contingent bequest fail where the former spouse survived the testator? I believe it does.

To answer the question otherwise forces us into one of two choices: (1) to ignore the condition precedent placed in the will by Corwin; or (2) to say the condition was satisfied by the "civil death" of Sena for the purposes of Corwin's will due to the marriage dissolution and the effect of section 633.271.

We cannot ignore the condition precedent.

I recognize there appears to be a split of authorities on the question posed. The cases are collected at Annot., 74 A.L.R.3d 1108, 1113-23 (1976).

However, two cases are very close on the facts and statutes involved to the present situation. In In re Estate of McLaughlin, 11 Wash.App. 320, 523 P.2d 437 (1974) the testator bequeathed all his property to his "wife"; provided, however, that "if she predeceased me," everything went to his wife's son, the testator's stepson. Approximately four months prior to testator's death, he and his wife were divorced and she survived him. Washington had a statute (RCW 11.12.050) which revoked the will as to the divorced spouse. The issue, as here, was whether the contingent bequest to the stepson should take effect. The Washington Court of Appeals held it should not.

Our holding that (testator's stepson) is entitled to nothing under the will is based upon the fact that the alternative bequest to him in the will was conditional, i. e., by the terms of the will he takes only if the ex-wife predeceases the decedent. Since the ex-wife survived the decedent, the bequest fails, leaving the decedent's estate to pass via the laws of intestate succession.

11 Wash.App. at 321, 523 P.2d at 438.

Similarly, in In re Estate of Lampshire, 57 Misc.2d 332, 292 N.Y.S.2d 578 (Sur.Ct.1968) the statute, facts and will provision were also similar to our situation. The New York court referred to a Missouri statute (V.A.M.S. Section 474.420), which provided:

If after making a will testator is divorced, all provisions in the will in favor of the testator's spouse so divorced are thereby revoked but the effect of the revocation shall be the same as if the divorced spouse has died at the time of the divorce. . . .

57 Misc.2d at 333, 292 N.Y.S.2d at 579-80.

The above provision is patterned after the Uniform Probate Code, section 2-508 (1969), which specifies that "property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent . . . ."

The New York court recognized that if the legislature had wanted to treat a divorce as declaring the spouse civilly dead, it could have so provided such as in Missouri. Since the legislature did not so elect, the New York court refused to read that into the statute and concluded that "(t)he dispositive provisions of the will are limited by certain conditions which not having occurred, caused the results of intestacy. 57 Misc.2d at 334-35, 292 N.Y.S. at 581. The Iowa legislature has not amended section 633.271, which was adapted from section 53 of the Model Probate Code, nor adopted the Uniform Probate Code.

Another case on somewhat different facts but reaching the same result as the trial court here is Davis v. Davis, 24 Ohio Misc. 17, 258 N.E.2d 277 (Ct.C.P.1970).

I find the reasoning of the Washington and New York courts persuasive.

Also, the spirit of our laws of descent and distribution should not be disregarded. The Iowa bar committee comment to section 633.274 (which provides a devise to a spouse shall lapse unless intent to the contrary is clear and explicit in the will) states: "Testators ordinarily do not intend property to pass to heirs of predeceased spouses, unless such heirs are the same as those of the testators . . . ."

We have said, "(W)hen construction of (a) will is required, a construction is favored which most nearly brings the bequest in conformity with laws of descent and distribution." Watson v. Manley, 257 Iowa 92, 97, 130 N.W.2d 693, 696 (1964).

The majority interprets the condition precedent that Sena predecease Corwin to mean that Corwin intended his estate should go to his former stepson, Wayne...