Roberts' Estate, In re

• Decision Date: 14 October 1969
• Docket Number: No. 53545,53545
• Parties: In the Matter of the ESTATE of S. V. ROBERTS, a/k/a Samuel V. Roberts a/k/a Samuel Verne Roberts, Deceased.
• Court: Iowa Supreme Court

Page 269

171 N.W.2d 269

In the Matter of the ESTATE of S. V. ROBERTS, a/k/a Samuel V. Roberts a/k/a Samuel Verne Roberts, Deceased.

No. 53545.

Supreme Court of Iowa.

Oct. 14, 1969.

Alfred A. Beardmore and T. A. Beardmore, Charles, City, for appellant.

Dunkelberg & McKinley, Osage, for appellee.

Arson, Justice.

Pursuant to the admission to probate of the will of S. V. Roberts, deceased, in December 1967, Donna M. Shoars, a daughter beneficiary under the will, in February 1968, filed an application in the estate to construe the will alleging that paragraph 4 thereof, which granted an option to decedent's son Verne A. Roberts to buy 'the 240 acres in Floyd County, Iowa, for $300.00 per acre' was inconsistent and in conflict with paragraphs 2 and 3 of the will and was null, void, and of no effect.

The trial court construed the will in applicant's favor and decreed that paragraph 4 of the will is a nullity and of no force and effect, that the 240 acre farm in Floyd County descended to and vested in those persons named in paragraph 5 of the will, and that they are equal owners of the real estate. The executor of the estate appeals, and we reverse.

S. V. Roberts, also known as Samuel Verne Roberts and as Samuel V. Roberts, died on December 12, 1967, and his will made and executed December 18, 1957, was duly admitted to probate. It provided for the payment of debts, expense of last sickness and burial be first paid, and stated:

'(2) To my beloved wife, Alma M. Roberts, I hereby give, devise and bequeath all of my personal property up to the amount of $40,000.00 and should my personal property not amount to $40,000.00, I then give her so much of the real estate as shall be necessary to make her a total of $40,000.00, said real estate to be of her own choosing.

'(3) To my beloved wife, Alma M. Roberts, I hereby give, devise and bequeath a life use of all of my property, both real and personal, with full authority to sell, mortgage or dispose of any, or all it, and with authority to change the form of any investment, and I further authorize the use of so much of the principal as shall be necessary to maintain her in her usual station of life, and to bury her but that a sale, mortgage or change of the form of any investment, or the use of the principal shall be made only upon order of Court authorizing the same, it being my intention to have the Court pass upon the necessity and wisdom of such sale, mortgage, transfer or use, and whatsoever shall seem wise to the Court, after a proper investigation of the same, shall be my Will, for I realize that conditions and needs change.

'(4) I further direct my executor to sell to my son, Verne A. Roberts the 240 acres in Floyd County, Iowa, for $300.00 per acre unless I shall have sold it to him myself prior to my death.

'(5) After the said life use given above, I hereby give, devise and bequeath all of my property that remains both real, personal or mixed to my four children, they being Mrs. Marie E. Roberts, Irene G. Muller, Verne A. Roberts and Donna M. Shoars in equal shares, the same to be theirs absolutely.'

Paragraph 6 nominated his wife to be executrix, and also provided, if she does not act, that his son, Verne A. Roberts, be appointed executor without bond.

Alma M. Roberts died on January 23, 1968, and Mervin D. Muller became the executor of both the estate of S. V. Roberts and the estate of Alma M. Roberts. He alone appeared to resist applicant's petition to construe. Since Alma M. Roberts had not made an election prior to her death, Muller as her executor filed an election on March 13, 1968, to take certain property of decedent under paragraph 3 of his will in lieu of the $40,000 bequest. The farm land in controversy here was not a part of that property taken.

This appeal presents two questions for our consideration: (1) Was the intent of the testator as disclosed by the words used in his last will and testament clear and unambiguous? (2) Were subsequent provisions of the will so inconsistent and repugnant to the other provisions thereof as to require their voidance as contrary to law?

I. The governing rule in the construction or interpretation of a testamentary disposition is the intention of the testator. This rule is so well established that any citation of authority for it would not aid this opinion. Nevertheless, this cardinal rule is sometimes overlooked or neglected by counsel and courts in the search for precedents to sustain desired conclusions. Precedents are often useful aids, but they should never lead to a construction of a will which, in view of the existing situation, clearly was not in the mind of the testator. In re Estate of McCulloch, 243 Iowa 449, 457, 52 N.W.2d 67, 72, and citations. It was said in In re Estate of Pottorff, 216 Iowa 1370, 1373, 250 N.W. 463, 465: 'Rules of construction of wills are only useful when they are an aid to the court in ascertaining the intent of the testator. No arbitrary or technical rules of construction should prevail where the wording of the will itself expresses the testator's intent, * * * the testator has the legal right to make any distribution of his property he may elect, not contrary to law or public policy, and in doing so the testator may provide under what conditions certain devises and gifts will pass and become effective.' Also see Lytle v. Guilliams, 241 Iowa 523, 41 N.W.2d 668, 16 A.L.R.2d 1377.

Our position in will construction cases was summarized in In re Estate of Larson, 256 Iowa 1392, 1395, 131 N.W.2d 503, 504, and citations. We said the law is well settled (1) the testator's intent is the polestar and must prevail; (2) his intent must be gathered from a consideration of (a) all the language contained in the four corners of his will, (b) his scheme of distribution, (c) the circumstances surrounding him at the time he made his will, and (d) the existing facts; and (3) technical rules or canons of construction should be resorted to Only if the language of the will is clearly ambiguous or conflicting or the testator's intent is for any reason uncertain. Also see In re Estate of Zang, 255 Iowa 736, 739, 123 N.W.2d 883, 885; Gilbert v. Wenzel, 247 Iowa 1279, 1281, 78 N.W.2d 793, 795; Porter v. Tracey, 179 Iowa 1295, 162 N.W. 800; 95 C.J.S. Wills § 591, p. 752.

On the other hand, it is equally well established that the testator's intention must not be ascertained from a single part or paragraph of the will, but the instrument must be read and considered as a whole, each part in connection with every other part and with the entire will, and each part given meaning and operation if possible. We said in McCulloch, supra, at page 457 of 243 Iowa, page 72 of 52 N.W.2d : 'It must be assumed that each part of the will was incorporated by the testator with some definite purpose, and it should not be discarded or disregarded without sound reasons.' We also pointed out therein that the intention of the testator must be gathered from the words of the will itself if their meaning as a whole is clear, unambiguous and unequivocal. We seek the meaning of the words actually used and must remember, where that is clear, there is not reason for construction of the will or for the use of arbitrary and technical rules or canons of construction in ascertaining the testator's intention. See also In re Estate of Syverson, 239 Iowa 800, 32 N.W.2d 799; Tague v. Tague, 248 Iowa 1258, 85 N.W.2d 22.

Certainly the form of the will has no bearing on the intentions of the marker, and we have often held that he arrangement of the will or the order in which its clauses or paragraphs appear is not controlling and may be of little significance since the will must be read and construed as a whole. In re Estate of Glandon, 219 Iowa 1094, 1097, 260 N.W. 12, 13; In re Estate of McCulloch, supra; In re Will of Richter, 212 Iowa 38, 43, 234 N.W. 285; 57 Am.Jur., Wills, § 1124, p. 719. In Richter, there was an apparent conflict between Items 3 and 4 of the will and we pointed out testator's intent was to be gathered from the entire will and all parts therein must be considered together and construed and given force and effect, if possible, and that it is permissible to transpose words, expressions, and even sentences to determine the testator's intent. 1 Redfield on the Law of Wills (4th Ed.) 445 was quoted with approval, and states: 'The rule seems to be pretty clearly established that, where the testator makes a general devise, or bequest, which would a general devise, of his estate, and in other portions of the will makes specific dispositions, these shall be regarded as explanations, or exceptions, out of the general disposition; and it will not be important, in such case, whether the general or the special provisions come first in order, since, in either case, the general disposition will be regarded as made subject to the more specific ones.' It was held the intent of the testator was quite apparent, and that the prior paragraph of 'the rest, residue, and remainder' should be transposed to the end of the will, and by so doing the testator's intent could be fully accomplished.

In the case at bar the trial court seemed to give considerable weight to the arrangement of this will, and counsel seemed to concede that if paragraph 4 had preceded paragraphs 2 and 3, the option would not have interfered with the bequests in paragraphs 2, 3 and 5. We find no merit in those positions and are convinced here that the arrangement did not have significance, at least to the extent that it obscured the testator's clear intent.

II. Some confusion exists as to what is contrary to law or public policy, and a number of decisions have been rendered by this court limiting the right of testator to defeat, destroy or limit the enjoyment of a bequest by a subsequent paragraph of his will....