Stake v. Cole

• Decision Date: 09 March 1965
• Docket Number: No. 51595,51595
• Citation: 257 Iowa 594,133 N.W.2d 714
• Parties: Ella J. STAKE, Appellant, v. Walter COLE, as Executor of the Last Will and Testament of Jennie Cole, Deceased, and Barbara Davis and Dorothy Deal, Appellees.
• Court: Iowa Supreme Court

Page 714

133 N.W.2d 714

257 Iowa 594

Ella J. STAKE, Appellant, v. Walter COLE, as Executor of the Last Will and Testament of Jennie Cole, Deceased, and Barbara Davis and Dorothy Deal, Appellees.

No. 51595.

Supreme Court of Iowa.

March 9, 1965.

Luther M. Reading, Jefferson, for appellant.

Richardsons, Jefferson, for appellees.

GARFIELD, Chief Justice.

This is an action for declaratory judgment presenting a question of ademption, in whole or in part, of a specific devise of realty to plaintiff. Following trial in equity the court held there was an ademption of the devise and plaintiff has appealed.

Jennie Cole made her will September 15, 1948. After the usual direction to pay debts and expenses, she devised 98 acres of land to her niece Barbara Cole Davis, and her undivided fourth interest in 128 acres to another niece, Dorothy Cole Deal. To her sister Ella J. Stake, she devised her homestead in Fort Dodge and its contents. The will directs that war bonds held by testatrix, not in joint ownership, be divided between her two brothers Walter and Wilber Cole and a Mrs. Booth, not related to testatrix. The rest of her estate was to be divided equally between the two nieces above named. Walter Cole was nominated executor.

A codicil dated December 10, 1951, recites, so far as material, that the land devised to the niece Dorothy Cole Deal had been sold and she it to have, out of the residuary estate, a sum equal to what testatrix received therefor.

A guardian was appointed for testatrix as mentally incompetent on May 22, 1954, and she remained under guardianship until her death August 29, 1962. On July 20, 1954, the guardian petitioned the district court for authority to sell the homestead devised to the sister, Ella J. Stake, to obtain funds to provide for care of the ward who was confined in a private mental institution. The petition was set for hearing on August 13, original notice thereof served on the ward and a guardian ad litem appointed for her who filed answer. On August 13, the court ordered the sale 'for the purpose of obtaining funds with which to support said ward.'

On February 10, 1955, the guardian reported a contract for sale of the Fort Dodge dwelling for the appraised value of $10,000. The sale was duly approved by the court and consummated by the guardian. On March 17, 1955, the guardian received $342.81 upon sale of the furniture in the dwelling and reported it, with his other doings, to the court. On May 27, 1955, the court approved the report. In the present action the trial court held sales of the dwelling and furniture and expenditure of the proceeds for care and keep of the ward worked an ademption of the specific devise to plaintiff Ella J. Stake.

Plaintiff's petition alleges none of the funds received from the two sale 'were necessary to be used for care and keep of the ward, all the proceeds thereof were on hand at the ward's death and were turned over to the executor of her estate by her guardian.' Prayer of the petition is for a declaration that a trust exists in plaintiff's favor on $10,342.81 now in the executor's hands as proceeds of the sale of the specifically bequeathed property and that the nieces Barbara Cole Davis and Dorothy Cole Deal have no rights to said sum.

Upon the trial plaintiff offered in evidence the court files in the guardianship and estate proceedings and rested. Defendants, executor and nieces offered testimony of a meeting in the guardian's office in Jefferson in July, 1954, attended by the ward's two brothers Walter and Wilber, plaintiff sister, one of the nieces and the guardian, at which it was determined by all present the Ford Dodge house should be sold; also that following the meeting they all went to Fort Dodge where plaintiff looked over the furniture and took what she wanted. Defendants also offered in evidence, subject to plaintiff's objection, two exhibits. We think the objection was good and hence disregard the exhibits. They are relatively unimportant.

On rebuttal plaintiff admitted she attended a meeting in the guardian's office in Jefferson in July, 1954, at which the two brothers were present, and went to Fort Dodge with her husband and wife of a brother 'she supposed to view the property.' Plaintiff denied sale of the realty or personalty was discussed or that she gave her consent at the meeting that the house be sold and the funds intermingled. Plaintiff did not deny she looked over the furniture and took what she wanted.

The trial court's findings of fact, conclusions of law and decree were filed over 15 months after submission of the case. No explanation appears for this regrettable delay. The court found the proceeds from sale of the Fort Dodge home were expended for care and keep of the ward. The conclusions of law state that if any funds from the sale remained in the guardian's hands plaintiff would be entitled to a declaratory judgment therefor under our decision in In re Estate of Bierstedt, 254 Iowa 772, 119 N.W.2d 234; however, since the funds were expended plaintiff is not entitled to such declaration.

I. The burden of plaintiff-appellant's argument is that it was not necessary to spend the proceeds of the sale of the dwelling and its contents and they should not have been so expended because, it is said, the ward owned other property, not specifically bequeathed, which was available for her care. Plaintiff admits the money received for the dwelling and furniture was spent for care of the ward and costs in the guardianship.

There is no question that the devise of the dwelling and its contents is a specific devise.

Ademption is sufficiently defined, for present purposes, as a taking away. Where property specifically devised is not found in the estate and the devise cannot be fulfilled there is ordinarily an ademption of the devise. It is clear that if testatrix while competent, had disposed of the dwelling and contents the devise would be thereby adeemed.

Where, however, sale of specifically devised property is made by the guardian of an incompetent testator, with court approval, the devise is adeemed only to the extent proceeds of the sale are used for care and maintenance of the ward and expenses of the guardianship. To the extent the proceeds of the sale are traceable into the hands of the executor there is no ademption. This is the majority rule in this country to which we are committed. In re Estate of Bierstedt, 254 Iowa 772, 775-776, 119 N.W.2d 234, 236, and citations.

There is a minority rule that, in the absence of statute, a sale of specifically devised property by the guardian of an incompetent testator, under court authorization, works an ademption of the devise and resort by the devisee to any proceeds of the sale may not be had. Bierstedt case, supra; Anno. 51 A.L.R.2d 770, 781-785.

Walsh v. Gillespie, 338 Mass. 278, 154 N.E.2d 906, cited in our Bierstedt opinion, contains an excellent discussion of the history of ademption and what we have referred to as majority and minority rules. The Walsh opinion cites the same precedents our Bierstedt decision does as supporting the majority rule that a sale by a guardian of an incompetent testator of specifically bequeathed property does not work an ademption so far as the proceeds are traceable. These citations are followed by this (page 908 of 154 N.E.2d): 'None of these cases takes the position that this principle applies to that portion of the proceeds which have been expended for the support of the ward. It seems to be generally recognized that as to such expenditures the specific legacy is adeemed pro tanto.'

In addition to In re Estate of Bierstedt and Walsh v. Gillespie, both supra, plaintiff cites Buder v. Stocke, 343 Mo. 506, 121 S.W.2d 852 (also cited in Bierstedt and Walsh) in support of her principal contention. The Buder opinion contains this, in conflict with plaintiff's position (page 857 of 121 S.W.2d): 'Of course where the bequeathed specific property and everything received for it has completely disappeared from the testator's estate before his death, there could be no other result reached except an ademption or revocation by complete failure of the bequest or devise; as, for example, a sale of the bequeathed property by the guardian and expenditure of the proceeds for the maintenance of his ward.'

6 Bowe-Parker--Page on Wills (1962), section 54.18, page 272, thus summarizes the American decisions on the point under discussion: 'In the United States a sale * * * by the guardian of an insane testator works an ademption as far as the proceeds of such sale * * * have been expended for the benefit of the testator. If the proceeds of such sale * * * have not been expended for the benefit of the testator and can be traced, it is generally held in the United States that the sale * * * does not adeem a specific devise or legacy; and that the devisee or legatee takes the proceeds as far as they can be traced.'

No decision of an American appellate court has been cited or come to our attention which supports plaintiff's contention that because other property of testatrix might have been resorted to for her care and maintenance, sale of the dwelling with court authorization and expenditure of the proceeds for such purpose does not work an ademption of the devise. Such a holding would be contrary to language in the Bierstedt opinion and others cited in support of it.

II. It seems desirable to recite more fully the facts surrounding the guardian's sale of the property devised to plaintiff. His petition for court authority to make the sale states the dwelling is unoccupied, unrented and because of the ward's physical incapacity would not be used for her except for rental or other purposes; that to rent the property would require considerable expenditures which would not materially increase its value; the ward is confined in a private mental institution; there is available only about enough money to pay her expenses for two months; it would be...