Rodenburg v. Rodenburg

• Decision Date: 10 January 1956
• Docket Number: No. 48843,48843
• Citation: 247 Iowa 444,74 N.W.2d 241
• Parties: Hugo RODENBURG, Appellee, v. Arthur W. RODENBURG et al., Appellants.
• Court: Iowa Supreme Court

Page 241

74 N.W.2d 241

247 Iowa 444

Hugo RODENBURG, Appellee, v. Arthur W. RODENBURG et al., Appellants.

No. 48843.

Supreme Court of Iowa.

Jan. 10, 1956.

Hugh P. Finerty and John P. Churchman, Council Bluffs, and K. C. Acrea, Missouri Valley, for appellants.

Smith, Peterson, Beckman & Willson, Council Bluffs, for appellee.

THOMPSON, Justice.

Plaintiff in his petition alleged his ownership of lands in Pottawattamie County described as the South half (S 1/2) of the Northwest Quarter (NW 1/4) and the North half (N 1/2) of the Southwest Quarter (SW 1/4), in Section 17, Township 77 North, Range 42 West of the 5th P.M. Plaintiff prayed that title to this realty be quieted in himself. He is a son of John J. Rodenburg, who died testate on November 16, 1940. John J. Rodenburg left surviving ten children, some of whom are now deceased. The defendants in the instant case are the surviving sons and daughters, the children or other legal heirs of those deceased, and the unknown claimants to the real estate above described. Not all of the defendants appeared, but certain ones did so, and they have now appealed from a decree in favor of the plaintiff.

I. The important point in the case concerns the proper construction to be given to the will of John J. Rodenburg. The particular parts involved are Items VII and XIII, although the whole will is material, since it must be construed by a consideration of the entire document to ascertain the true intent of the testator. Items VII and XIII are set out herewith.

'Item VII

'It is my will and I do hereby give, devise and bequeath to my son, Hugo Rodenburg, the property described as the South half (S 1/2) of the Northwest Quarter (NW 1/4) and the North half (N 1/2) of the Southwest Quarter (SW 1/4) all in Section 17, Township 77 North, Range 42 West of the 5th P.M. subject to the contingency as hereinafter set forth.

'Item XIII

'It is my will and I do hereby further provide that if any of my children shall be without child or children that then and in that event such children shall be and are hereby given only a life estate in and to the property above described and shall only have the use for life of such property; if such child or children depart this life prior to his or her spouse, then such spouse shall have the use of same during his or her life and after the death of both such child or children of mine and the spouse or spouses, such property shall be equally divided as to such of my other children as may be living at said time or the children of such children and if any are dead, then their children shall only take the share of such child of mine. This is only effective as to any not having children at my death.'

It is the plaintiff's claim that the will gives him a fee simple title absolute to the lands referred to in Item VII. Defendants assert that he has but a life interest, to be followed by a life interest in his spouse if she survives him. The important facts are that the will was executed on March 9, 1938, the testator died on November 16, 1940, that the plaintiff was married and childless both at the time the will was executed and when the testator died, and that a child, Phyllis Kay Rodenburg, was born to plaintiff and his wife on August 12, 1946.

II. Both plaintiff and defendants cite certain well-established rules of law, which we repeat. The cardinal principle in construing wills is to find the real intent of the testator, and to give it effect. In so doing, the entire will must be considered; that is, it must be taken as an entirety, by its 'four corners', and every part given its proper interpretation and significance. The intention of the testator must be arrived at by determining not what he might have said or should have said, but what he actually did say. All of these principles are so well settled in the Iowa law that they need no further elaboration or citation of authorities; but those who are interested may find them set out and discussed in In re Estate of McCulloch, 243 Iowa 449, 456, 457, 458, 52 N.W.2d 67, 72, 73 (Bliss, J.). It is also true, as the appellants here emphasize, that when the meaning of the will is clear and unambiguous, there is no room for construction; or perhaps it is more nearly correct to say there is then only one permissible construction. In re Estate of McCulloch, supra, at page 457 of 243 Iowa, at page 72 of 52 N.W.2d.

III. But, while we agree with the rule last above stated, we do not find the language of the will under consideration here so clear that we may apply it. The will was evidently prepared by a skilled draftsman; but Item XIII is not so clear in its meaning that we can say there is no room for differing opinions as to the intent disclosed. Consideration must be given not only to this item but to the entire document.

It will be noted that Item VII, while first giving to the plaintiff what, standing alone, would be a fee simple absolute, closes with the words 'subject to the contingency as hereinafter set forth.' This makes the title granted subject to a condition or conditions. It creates what is variously known in the law as a conditional, or defeasible, or base or qualified fee. We have recognized and discussed the nature of conditional or defeasible fees in many cases. See In re Estate of McCulloch, supra; Shope v. Unknown Claimants, 174 Iowa 662, 156 N.W. 850; Sagers v. Sagers, 158 Iowa 729, 138 N.W. 911, 43 L.R.A.,N.S., 562.

It is not contended that the devise to the plaintiff in Item VII was so absolute and unqualified that any limitation in a later part of the will created a repugnancy and so would be void. The gift to Hugo Rodenburg in Item VII was clearly conditioned in the same item upon the happening or failure to happen of a contingency; and this contingency can only be the one defined in Item XIII. It is the interpretation of Item XIII which is the difficult feature of the case.

IV. Item XIII (set out verbatim in Division I above) first says: 'It is my will * * * that if any of my children shall be without child or children that then and in that event such children shall be and are hereby given only a life estate in and to the property above described * * *.' Then comes a provision for a life estate in the spouse of such child if such spouse survives the child of testator who 'shall be without children'; then follows a reverter clause, providing that the property, after the death of the child of the testator who 'shall be without children', and his or her spouse, shall be divided among the testator's other children or their children. The closing sentence, the one which is the primary cause of the contention here, says: 'This is only effective as to any not having children at my death.'

The defendants-appellants construe this final sentence as indicating a clear intent on the part of the testator that the condition on which plaintiff's title was limited--if he should be 'without child or children'--would become effective if he was without such child or children at the time of the testator's death. Since he did not have a child at that time, defendants think the condition upon which defeasance was based has occurred, and plaintiff has only a life estate.

On the other hand the plaintiff-appellee, and the trial court, interpret the words 'any not having children at my death' found in the final sentence of Item XIII as modifying the preceding language 'if any of my children shall be without child or children' so that the true meaning is: 'If any of my children, 'not having children at my death', shall be without child or children.' Thus the condition would operate only if the child or children died without children. The importance of the two conflicting constructions arises because the plaintiff did not have a child or children at the time of the death of the testator, but did have a child later born. Thus, while the defendants urge that the child must have been born before the death of the testator, the plaintiff contends and the trial court held that the birth...