Russell v. Johnston, 67634

• Citation: 327 N.W.2d 226
• Decision Date: 22 December 1982
• Docket Number: No. 67634,67634
• Parties: Sherry RUSSELL, Robert Russell, II, Appellants, v. Marie K. JOHNSTON, Executor of the Estate of Robert R. Russell, Deceased, Appellee.
• Court: United States State Supreme Court of Iowa

Page 226

327 N.W.2d 226

Sherry RUSSELL, Robert Russell, II, Appellants, v. Marie K. JOHNSTON, Executor of the Estate of Robert R. Russell, Deceased, Appellee.

No. 67634.

Supreme Court of Iowa.

Dec. 22, 1982.

T.K. Ford, Burlington, for appellants.

Robert J. Todd and Edward W. Dailey of Edward W. Dailey Law Offices, P.C., Burlington, for appellee.

Considered by REYNOLDSON, C.J., and UHLENHOPP, McCORMICK, LARSON, and SCHULTZ, JJ.

SCHULTZ, Justice.

Two issues are presented in this appeal from a ruling in a will construction action. First, we must determine whether a devise in decedent's will to a woman who decedent later married was revoked by the subsequent dissolution of that marriage. The district court held that the devise was not so revoked. Second, we must decide whether the district court erred in interpreting a contingent provision of decedent's will. The district court held that if the devise to decedent's second spouse, Marie K. Johnston (Marie), failed, Marie was entitled to the estate as assignee of the interest of the contingent devisee, Don Rappenecker (Don). The decedent's children, Sherry Russell and Robert Russell II, contend that the devise to Marie is revoked pursuant to Iowa Code section 633.271. The children also contend that the contingent devise lapsed since it was conditioned upon Marie's not living on the thirtieth day following decedent's death and Marie was then alive. The children urge that because of the revocation of the devise to Marie and the lapse of the contingent provision, the estate passed by intestacy to decedent's heirs at law. We hold that the devise to Marie is revoked by the statute, but we also hold that the contingent devise to Don does not fail. We affirm the ruling of the district court.

A declaratory judgment to construe or interpret a decedent's will is tried in equity and our review is de novo. Matter of Estate of Kruse, 250 N.W.2d 432, 433 (Iowa 1977); Matter of Estate of Miguet, 185 N.W.2d 508, 513 (Iowa 1971). In a de novo review we must make findings of fact anew; however, when considering the credibility of the witnesses we give weight to the fact findings of the trial court, although we are not bound by them. See Iowa R.App.P. 14(f)(7). We shall set out the appropriate facts in each division of this opinion.

I. Revocation of devise to spouse by dissolution of marriage. In December 1976 decedent's twenty-eight year marriage was dissolved. The following April decedent began to court Marie, who was then a married woman. A decree dissolving her marriage was entered on August 25, and decedent announced his engagement to Marie shortly thereafter. On September 2 decedent executed a will appointing Marie as his executor and devising all of his estate to her provided she was living on the thirtieth day following the date of his death.

Decedent and Marie were married on September 24, 1977, but on June 2, 1978, Marie filed for dissolution of the marriage. A decree dissolving the marriage was entered on September 5. On October 17, 1978, decedent died without having changed his will. The will was admitted to probate on October 19 and Marie was qualified as executor.

The children argue that the provision in the will in favor of Marie is revoked by operation of Iowa Code section 633.271. That section provides in pertinent 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." The trial court concluded that this section was inapplicable since the will was executed prior to the marriage and Marie was not then a "spouse". The trial court further concluded that the legislature must have intended for this section to apply "to a testator making a will in favor of his wife as opposed to, his girlfriend." Thus, the district court limited the definition of the term "spouse" to the actual status of the devisee at the time of the execution of the will. The children urge that the district court's interpretation is too restrictive and does not take into account the section's clear reference to "testator's spouse". They urge that the term "testator" can mean the one who makes the will, has made a will, or dies leaving a will. They contend that Marie was decedent's spouse after he had made a will and that she was his divorced spouse when he died leaving a will.

In determining the meaning of section 633.271 we turn to our case law decided before and after the section's enactment. At common law the divorce of a testator and his wife after the making of his will did not revoke the provisions of the will. In re Brown's Estate, 139 Iowa 219, 223, 117 N.W. 260, 263 (1908). However, after the enactment of section 633.271 we held that a dissolution of marriage revokes all provisions in the will in favor of a spouse. Porter v. Porter, 286 N.W.2d 649, 651 (Iowa 1979). In Porter, however, the spouse was married to the decedent at the time of the execution of the will.

In applying our own statute for the first time to the question before us, we are aided by case authority from other states with similar statutes. Three state courts have applied statutes mandating revocation of will provisions that favor a former wife to a wife who was not married to the testator at the time he executed the will. In Estate of Joseph B. Bloomer, 620 S.W.2d 365 (Mo.1981) (testator executed a will leaving his property to a woman he married later; however, they were divorced prior to his death which revoked the provision in her favor); Conascenta v. Giordano, 143 So.2d 682 (Fla.Dist.Ct.App.1962) (testator executed will prior to marriage, marriage ended in divorce, and both parties remarried before testator's death); McFarlen v. McFarlen, 536 S.W.2d 590 (Tex.Civ.App.1976) (testator married, executed his will divorced his spouse, and subsequently remarried and divorced the same woman; when he died without changing his will the court precluded her from taking under his will).

The clear purpose of section 633.271 is to provide an automatic revocation of provisions in a will in favor of a spouse after a marriage is dissolved. The legislature obviously recognized that due to the change in the family structure new moral duties and obligations may have evolved subsequent to the execution of the will, and that due to the turmoil of a dissolution an automatic revocation is in the best interest of the testator. Certainly, the purpose for which the statute was enacted is equally applicable to a testator's spouse whether she is married before or after the execution of the will.

We conclude that the legislature intended that pursuant to section 633.271 any provision in a will in favor of a former spouse of a decedent is to be revoked when there is a divorce or dissolution of marriage prior to death. We hold that this provision is equally applicable when the marriage of the parties takes place after the execution of the will.

Marie urges, however, that there should not be a mandatory revocation and that we should look to the clear intent of the decedent. She contends the evidence shows that the decedent before, during, and after the marriage intended that the property be distributed as provided by his will. Nevertheless, the plain unequivocal language in section 633.271 provides for a revocation when the "testator is divorced or the marriage is dissolved." This language comports with the general rule that when a...