Thompson's Estate, In re

• Citation: 164 N.W.2d 141
• Decision Date: 14 January 1969
• Docket Number: No. 53315,53315
• Parties: In the Matter of the ESTATE of Charles F. THOMPSON, Deceased. In the Matter of the ESTATE of Dorothy E. THOMPSON, Deceased. W. E. S. Hutcheon and John M. Shanda, Executors.
• Court: Iowa Supreme Court

Page 141

164 N.W.2d 141

In the Matter of the ESTATE of Charles F. THOMPSON, Deceased.

In the Matter of the ESTATE of Dorothy E. THOMPSON, Deceased.

W. E. S. Hutcheon and John M. Shanda, Executors.

No. 53315.

Supreme Court of Iowa.

Jan. 14, 1969.

Eugene R. Melson, Jefferson, for appellant.

Cudahy & Wilcox, Jefferson, for appellees.

LARSON, Justice.

This is a proceeding in probate upon the application of certain beneficiaries asking that designated real estate be set off to them under the last will and testament of Charles F. and Dorothy E. Thompson. The application was resisted by the residual devisee, Presbyterian Church. Pursuant to hearing, the court granted applicants the relief prayed and resister appeals. The principal issue is the correctness of the court's construction of paragraph II--D of decedents' will.

Decedents Charles F. and Dorothy E. Thompson executed a joint last will and testament on February 6, 1960. Paragraph II--D provides in part: 'We also devise to the said Henry Ostendorf and Shirley Ostendorf, or the survivor thereof, the life use of the following described real estate, to-wit: The North fractional Half (N fr 1/2) of the Northeast Quarter (NE 1/4) of Section Five (5), Township Eighty-two (82) North, Range Thirty (30), West of the 5th P.M., Greene County, Iowa, together with forty acres (40A) of our interest in the South Half (S 1/2) of the Southwest Quarter (SW 1/4), and the West Half (W 1/2) of the Northeast Quarter (NE 1/4), all in Section Thirty-two (32), Township Eighty-three (83) North, Range Thirty (30) West of the 5th P.M., Greene County, Iowa, and subject to said life use to Henry Ostendorf and Shirley Ostendorf, we devise the remainder of said real estate to said Richard Ostendorf upon condition that he pay the sum of $5,000.00 without interest to the Presbyterian Church of Jefferson, Iowa within two (2) years from the death of the survivor of Charles F. Thompson and Dorothy E. Thompson.'

In their application for admeasurement of their interest by the executors of this will duly admitted to probate, Henry, Shirley and Richard asked that the life use of 40 acres referred to in the will be taken from decedents' interest in the South Half (S 1/2) of the Southwest Quarter (SW 1/4) of Section 32, and a life use of decedents' interest in the 80 acres described as the West Half (W 1/2) of the Northeast Quarter (NE 1/4) be set off to Henry and Shirley Ostendorf, and on the condition that Richard pay the Presbyterian Church $5,000.00, the remainder to him. In other words, applicants claim the bequest was a life estate with conditional remainder in and to three parcels--the home 80 acres, 40 acres in the S 1/2 of the SW 1/4 of Section 32, and all 80 acres of the W 1/2 of the NE 1/4 of Section 32.

In its resistance to the Ostendorf application the church claimed a vested interest in all but 40 acres of the testators' interest in all the described real estate in Section 32. In other words, the church contends, under the plain wording of the will, only 40 acres of the 160 acres described in Section 32 were given to the Ostendorfs, and the balance of testators' interest therein was given to the church as the residual beneficiary.

The following rough sketch of the tracts of land involved in this controversy may aid in understanding the area and location of this property:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Paragraph I of this will devised the personal property and the life use of all real estate to the surviving testator.

Paragraph II of the will provided:

'The surviving testator of this Will, either Charles F. Thompson or Dorothy E Thompson, as the case may be, hereby devises and bequeaths by this Will, all property owned by the surviving testator, and the real estate of the other testator, in the following manner:

'A. To our friend, John Butler, now of Jefferson, Iowa, and who was our faithful employee for several years, we give the sum of $1,000.00.

'B. To our grandniece, Judy Thompson, we give our set of Haviland china.

'C. To our grandnephew, Charles W. Thompson, we give the sum of $5,000.00.

'D. To our friends, Henry Ostendorf and Shirley Ostendorf, or the survivor thereof, or to their son, Richard Ostendorf, if neither the said Henry Ostendorf or Shirley Ostendorf, survive us, we give and bequeath all personal effects and furniture and contents contained in our home at the time of the death of the surviving testator, except the set of Haviland china which has been disposed of in Par. II B above. We also devise to the said Henry Ostendorf and Shirley Ostendorf, or the survivor thereof, the life use of the following described real estate, to-wit: The North fractional Half (N fr 1/2) of the Northeast Quarter (NE 1/4) of Section Five (5), Township Eighty-two (82) North, Range Thirty (30), West of the 5th P.M., Greene County, Iowa, together with forty acres (40A) of our interest in the South Half (S 1/2) of the Southwest Quarter (SW 1/4), and the West Half (W 1/2) of the Northeast Quarter (NE 1/4), all in Section Thirty-two (32), Township Eighty-three (83) North, Range Thirty (30) West of the 5th P.M., Greene County, Iowa, and subject to said life use to Henry Ostendorf and Shirley Ostendorf, we devise the remainder of said real estate to said Richard Ostendorf upon condition that he pay the sum of $5,000.00 without interest to the Presbyterian Church of Jefferson, Iowa within two (2) years from the death of the survivor of Charles F. Thompson and Dorothy E. Thompson.

'E. We hearby give and devise to Elvin Dean Thompson, Alice Ann Andrew, Jean Abbott and Margaret Jongewaard the South Half (S 1/2) of the Northeast Quarter (NE 1/4) and the North Half (N 1/2) of the Southeast Quarter (SE 1/4) of Section Five (5) all in Township Eighty-two (82) North, Range Thirty (30) West of the 5th P.M., Greene County, Iowa, in order to carry out the intentions of the Last Will and Testament of Joseph Thompson, deceased.

'F. We hereby give and devise to our friends Donald Hall and Margaret Hall, or the survivor thereof, the life use of the West Half (W 1/2) of the Southeast Quarter (SE 1/4) of Section Sixteen (16), Township Eighty-two (82) North, Range Thirty (30) West of the 5th P.M., Greene County, Iowa, and subject to said life estate, we devise the remainder of said real estate to the children of the said Donald Hall and Margaret Hall. We also devise to the said Donald and Margaret Hall the East Half (E 1/2) of the Southeast Quarter (SE 1/4) of Section Sixteen (16), Township Eighty-three (83) North, Range Thirty (30) West of the 5th P.M., Greene County, Iowa, upon the express condition that said devisees shall pay to the Presbyterian Church, Jefferson, Iowa, the sum of $16,000.00, without interest, within two (2) years from the death of the survivor of either Charles F. Thompson or Dorothy E. Thompson.

'G. To our nephew, Elvin Dean Thompson, we give and devise the life use of the West Half (W 1/2) and the Southeast Quarter (SE 1/4) of the Northwest Quarter (NW 1/4) of Section Twenty-two (22), Township Eighty-two (82) North, Range Thirty (30) West of the 5th P.M., Greene County, Iowa, and subject to said life use we devise the remainder of said real estate to the children of the said Elvin Dean Thompson.

'H. To our niece, Alice Ann Andrew, we give and devise the Northeast Quarter (NE 1/4) of the Northwest Quarter (NW 1/4) of Section Twenty-two (22), Township Eighty-two (82) North, Range Thirty (30) West of the 5th P.M., Greene County, Iowa.

'I. To our niece, Margaret Jongewaard, we give and devise an undivided one-half interest in and to the South Half (S 1/2) of the Southeast Quarter (SE 1/4) of Section Five (5), and an undivided one-half interest in and to the North Half (N 1/2) of the Northeast Quarter (NE 1/4), of Section Eight (8), all in Township Eighty-two (82) North, Range Thirty (30), West of the 5th P.M., Greene County, Iowa, upon the express condition that the said Margaret Jongewaard shall pay to Alice Ann Andrew the sum of $4,000.00, without interest, within two (2) years from the death of the survivor of either Charles F. Thompson or Dorothy E. Thompson.

'J. To our friends, James Nelson and Faye Nelson, or the survivor thereof, we give and devise the sum of $3,000.00 and the life use of the South Half (S 1/2) of the Northeast Quarter (NE 1/4), and the North one-fourth (N 1/4) of the Southeast Quarter (SE 1/4), all in Section Six (6), Township Eighty-two (82) North, Range Thirty (30) West of the 5th P.M., Greene County, Iowa, and we direct that subject to said life use, that the remainder of said real estate shall become a part of the remainder of our estate and shall become the property of the Presbyterian Church of Jefferson, Iowa.

'K. All the rest, residue and remainder of said estate, we give, devise and bequeath to the Presbyterian Church of Jefferson, Iowa.'

Paragraph III provided for the appointment of executors of the will.

Pursuant to hearing to determine the intent of the testators under paragraph II--D, the trial court found the will was not ambiguous, construed the words used in applicants' favor, and directed the executors of the estate 'to surrender any possession which they have in and to the real estate described in paragraph II--D and that possession of the property in its entirety be set off to the applicants and that the applicants and the resistor determine, which they have agreed to do, which 40 acres the applicants shall receive as their devise.' It further sustained the applicants' motion for summary judgment for the purpose of settling title and interest in this real estate.

In its propositions relied on for reversal appellant asserts: (1) a decedent's will should be construed to carry out the intent of testator; (2) a will speaks as of the date of death, but is interpreted as of the date of its execution, and after-acquired property will pass only if intent is clear and explicit; (3) decedents' will...