Stonebrook's Estate, In re, No. 51913

• Court: United States State Supreme Court of Iowa
• Writing for the Court: GARFIELD
• Citation: 258 Iowa 1062,141 N.W.2d 531
• Parties: In the Matter of the ESTATE of Hoyt W. STONEBROOK, Deceased. Carol STONEBROOK, Executrix, Appellant, v. Thomas Elroy STONEBROOK and Norma Verjean Conard, Movant-Appellees.
• Decision Date: 05 April 1966
• Docket Number: No. 51913

Page 531

141 N.W.2d 531 258 Iowa 1062 In the Matter of the ESTATE of Hoyt W. STONEBROOK, Deceased.
Carol STONEBROOK, Executrix, Appellant,
v.
Thomas Elroy STONEBROOK and Norma Verjean Conard, Movant-Appellees. No. 51913. Supreme Court of Iowa. April 5, 1966.

[258 Iowa 1064]

Page 532

William N. Dunn, Eldora, and Alan Loth, Fort Dodge, for executrix-appellant.

Lundy, Butler, Wilson & Hall, Eldora, for movant-appellees.

GARFIELD, Chief Justice.

This is an application in probate by Carol Stonebrook, executrix of the estate of her deceased husband, Hoyt W. Stonebrook, for construction of his will. The trial court dismissed the application on motion of a son and daughter by a previous marriage. The executrix has appealed.

Paragraph III of the will, dated October 5, 1955, provides: 'I give, devise and bequeath to my wife, Carol Stonebrook, our homestead property located in Bowman's Subdivision to the north of Pine Lake State Park and including all personal property located therein, furniture, fixtures and personal effects; all of the same to be hers without limitation or qualification, and I direct my Executor that any indebtedness that may exist against said real estate at the time of my death shall be paid from the other assets of my estate to the end that my said wife shall receive the property above referred to free and clear of all liens and encumbrances.'

Paragraph IV of the will bequeaths to testator's wife a life estate in the rest of his property 'so long as she remains my widow.'

[258 Iowa 1065] Subject to Paragraphs III and IV, Paragraph V bequeaths the entire estate, share and share alike, to his two natural daughters and two sons. One son and one daughter were born of a previous marriage of testator, the other son and daughter of his marriage with Carol. (The will provides nothing is left to an adopted son.)

The last paragraph of the will (VIII) appoints Elvin J. Ryan executor.

A codicil, dated March 27, 1960, adds to the will a provision that if Elvin J. Ryan shall for any reason not act as executor, William N. Dunn is named to so act.

A second codicil, dated July 9, 1964 (herein called 'the codicil'), revokes the first codicil in its entirety and adds to the will a provision nominating the wife as executrix and if for any reason she does not serve, his older son (of the previous marriage) shall serve as executor in place of Carol.

The amended application of the executrix for construction of the will attached to it alleges testator died July 19, 1964, leaving his widow and four natural children as above stated; the property testator occupied as his homestead when the will was made was sold on contract July 15, 1962, and five days later he acquired Lot 11, Block E, Pierce Place Addition to the City of Eldora which he owned and occupied as his homestead until he died; in applicant's opinion testator intended to give his wife their homestead property and contents and the words of Paragraph III of the will, 'located in Bowman's Subdivision to the north of Pine Lake State Park,' should be disregarded and the will construed to give her the property described as Lot 11, Block E, Pierce Place Addition to Eldora and contents and that she be authorized to pay the indebtedness against it; that a latent ambiguity exists in the will by the sale of the homestead in Bowman's Subdivision north of Pine Lake State Park and acquisition of the homestead in Pierce Place Addition to Eldora.

The amended motion of the older son and daughter (two of the four remaindermen named in Paragraph V of the will) to dismiss the application asserts as grounds that it affirmatively appears therefrom the will is clear and unambiguous and not the subject for construction; sale of the real estate described in [258 Iowa 1066] Paragraph III of the will constituted an ademption, and no facts, as

Page 533

distinguished from opinions and conclusions, are alleged as a basis for construction.

In sustaining the motion to dismiss, the court ruled there was no latent ambiguity in the will when it was executed since testator then intended his wife to have the home described in Paragraph III; the devise of the realty so described and the legacy of its contents are specific, not general; sale of the realty worked an ademption of the devise; it may not be stretched to cover another house and contents in Pierce Place Addition to Eldora; to do so would amount to rewriting the will; when a specific gift is adeemed another property which testator obtains in place of the original one cannot be substituted for it.

I. Upon the appeal of the executrix it is contended making the (1964) codicil 'updated' the will and applies it to the circumstances in 1964, not those in 1955 when the will was made; while the codicial did not revive the devise of the nonexistent Bowman Subdivision homestead, it did make a different devise of the homestead in Pierce Place Addition to Eldora which existed in 1964; the description in the will of the homestead as in Bowman's Subdivision should be rejected as an erroneous statement of location and surplusage and the reference therein to 'our homestead' should be retained and applied to the homestead existing in 1964.

Although the application for construction does not so allege, we are told in argument the omission of the codicil to correct what, it is claimed, was then an erroneous description in the will of the homestead was due to the oversight of the scrivener or testator.

II. We note at the outset the contention now urged that making the codicil updated the will to 1964 was not made in the trial court in the amended application or otherwise so far as the record shows. This is perhaps because counsel who argued the appeal evidently did not represent the executrix in the trial court. We might decline to consider the contention referred to because it is first raised here. In re Estate of Sarbaugh, 231 Iowa 320, 324, 1 N.W.2d 105, 107; Bryan v. Iowa State Highway Comm., 251 Iowa 1093, 1095, 1096, 104 N.W.2d 562, 563, and [258 Iowa 1067] citations; Smith v. Newell, 254 Iowa 496, 499, 500, 117 N.W.2d 883, 885, 886, and citations; Dunlap v. Hart, 274 Mo. 600, 204 S.W. 525, 3 A.L.R. 1493, 1494. However, we prefer not to rest our determination of this point on this somewhat technical ground. We are satisfied the contention does not warrant a reversal.

III. It is clear the devise of the homestead north of Pine Lake and the legacy of the personalty located therein, found in Paragraph III, are specific, not general. Each is a gift of particular property, distinguished from other property of the same kind. In re Estate of Hartman, 233 Iowa 405, 408, 9 N.W.2d 359, 361, and citations; In re Estate of Lepley, 235 Iowa 664, 668, 17 N.W.2d 526, 528 (disapproved on another point in Nolte v. Nolte, 247 Iowa 868, 882, 76 N.W.2d 881, 889, 890, 56 A.L.R.2d 854); May v. Sherrard's Legatees, 115 Va. 617, 79 S.E. 1026, Ann.Cas.1915B 1131, 1132; 96 C.J.S. Wills § 1125 d, pages 878--882; 57 Am.Jur., Wills, section 1401.

IV. It is equally clear that when testator sold the real estate specifically devised in Paragraph III the devise was thereby adeemed. In re Estate of Bierstedt, 254 Iowa 772, 774, 775, 119 N.W.2d 234, 236, and citations; Stake v. Cole, 257 Iowa 594, 133 N.W.2d 714, 716, 717; 96 C.J.S. Wills § 1177a, c, pages 993, 997; 57 Am.Jur., Wills, sections 1580, 1582.

V. We come now to appellant's contention that making the codicil updated the will, made it apply to the circumstances in 1964, and made a new devise to her of the homestead in Pierce Place Addition to Eldora. Appellant claims too much for the making of this codicil the language of which merely nominates appellant as executrix by way of addition to the will and otherwise leaves it undisturbed.

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It is frequently said a will and its codicil are to be read and construed together as one instrument executed on the date of the codicil unless testator's manifest intent is to the contrary. In re Estate of Artz, 254 Iowa 1064, 1070, 120 N.W.2d 418, 422, and citations; In re Estate of Barnes, 256 Iowa 1043, 1049, 1050, 128 N.W.2d 188, 191, 130 N.W.2d 227; Watson v. Manley, 257 Iowa ---, 130 N.W.2d 693, 696.

Many authorities refer to the execution...