Trust of Cross, Matter of, 95-0028

CourtCourt of Appeals of Iowa
Writing for the CourtBefore HABHAB, P.J., HUITINK, J., and McCARTNEY; HABHAB; VOGEL
Citation551 N.W.2d 344
PartiesIn the Matter of the TRUST OF Edith CROSS, Deceased. Debora Thornton CHRISTY, David J. Thornton, Diane Thornton Gray, Dennis P. Thornton, Donna Thornton Sillyman, Daniel T. Thornton, Roger C. Thornton, Lila M. Soxman, and Howard L. Cox, Jr., Appellants, v. Verna Sterling TETT, Florine Dudley, Greta Gallahan, Esther French, Margaret Fry, Claire Steelman, Ellen Dillard, Robert Chance, Steve Wildeboer, Evelyn Hand, Lewis Deal, Vernon Chance, and Kenneth Steelman, Appellees, Glen Richard Cross, Trustee.
Docket NumberNo. 95-0028,95-0028
Decision Date31 May 1996

Page 344

551 N.W.2d 344
In the Matter of the TRUST OF Edith CROSS, Deceased.
Debora Thornton CHRISTY, David J. Thornton, Diane Thornton Gray, Dennis P. Thornton, Donna Thornton Sillyman, Daniel T. Thornton, Roger C. Thornton, Lila M. Soxman, and Howard L. Cox, Jr., Appellants,
v.
Verna Sterling TETT, Florine Dudley, Greta Gallahan, Esther French, Margaret Fry, Claire Steelman, Ellen Dillard, Robert Chance, Steve Wildeboer, Evelyn Hand, Lewis Deal, Vernon Chance, and Kenneth Steelman, Appellees,
Glen Richard Cross, Trustee.
No. 95-0028.
Court of Appeals of Iowa.
May 31, 1996.

Page 345

Charles F. Fairall of Fairall, Fairall, Kaplan, Hoglan, Condon & Klaessy, Marshalltown, for appellants.

Randal B. Caldwell and Gilbert R. Caldwell III of Caldwell, Caldwell, & Caldwell, Newton, and Dayton Countryman, Nevada, for appellees.

Nathan B. Updegraff of Selby, Updegraff & Smith, Newton, for trustee.

Page 346

Before HABHAB, P.J., HUITINK, J., and McCARTNEY, Senior Judge. *

HABHAB, Presiding Judge.

Edith Cross died testate on October 20, 1957. The residuary clause of her will bequeathed her property in trust to Kenneth Cross as trustee, directing amounts necessary from the income and corpus of the trust be used to provide for the care and maintenance of her daughter, Doris. Upon Doris' death, the trust assets were to be distributed in the following manner as set forth in Item IV of Edith's will: one-sixth to Fred Thornton, one-sixth to Grace Gilmore, one-sixth to Merle C. Thornton, one-fourth to the issue of Denver D. Cross, and one-fourth to the issue of Alta Cross Jones. Fred, Grace, and Merle were the siblings of Edith. Denver and Alta were the siblings of Edith's deceased husband.

Doris died on February 27, 1994, causing the termination of the trust. Upon her death, the trustee was instructed to liquidate the trust and distribute the net proceeds as directed by Item IV of Edith's will. Fred Thornton, however, had died in 1962; Grace Gilmore had died in 1969; and Merle Thornton had died in 1977.

Fred's last will and testament provided for the disposition of his residuary estate in ten shares. Fred's wife predeceased him and the couple had no children. As a result, Fred bequeathed his one-sixth share of Edith's trust in ten equal shares to his sister Grace Gilmore, his brother Merle Thornton, and eight of his wife's nieces and nephews.

The trustee of Doris' estate filed a petition with the court to determine the distributees of Edith's trust. The petition contended Fred's share "passed to his heirs by descent or by representation, and not to the beneficiaries of his will." An objection was filed by nine persons who are children and grandchildren of the deceased siblings of Fred's deceased spouse. The objectors contended Fred's share should be distributed to the beneficiaries named in his will. The court ruled, under Edith's will, Fred received a vested one-sixth share. The court concluded, based on Iowa law, this one-sixth share would pass under Fred's last will and testament. The court found it significant Edith's will treats different groups of people differently in regard to the distribution of trust assets. Thus, the objectors were entitled, as beneficiaries under Fred's will, to share the one-sixth remainder interest bequeathed to Fred under Edith's will.

The descendants of Grace and Merle, as potential distributees, appeal.

I.

In this equity action, our review is de novo. Iowa R.App.P. 4. We give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. In re Estate of Anderson, 359 N.W.2d 479, 480 (Iowa 1984).

The testator's intent is the polestar. Anderson, 359 N.W.2d at 480; In re Estate of Christensen, 461 N.W.2d 469, 470 (Iowa App.1990). The primary goal in interpreting a will is to discern the intent of the testator. In re Estate of Thompson, 511 N.W.2d 374, 377 (Iowa 1994); In re Estate of Hoagland, 203 N.W.2d 577, 580 (Iowa 1973). This intent is determined by the language used in the will, the scheme of distribution, the circumstances surrounding the will's execution, and the existing facts. Thompson, 511 N.W.2d at 377; In re Estate of Rogers, 473 N.W.2d 36, 39 (Iowa 1991). The question is not what the testator meant to say but what the testator meant by what he or she did say. Rogers, 473 N.W.2d at 39. We consider the entire will and strive to give each part meaning and effect. Id.

II.

Appellants first contend the district court erred in determining Fred's one-sixth interest passed to the beneficiaries of his will and not to his heirs by descent or by representation. Appellants argue Edith's will shows her intent was to distribute her property

Page 347

to her siblings or their issue, not to the families of the spouses of her siblings. Appellants are not arguing Fred could not devise his share; rather, they contend he did not have a share to devise since he died prior to the death of Doris. 1

We give primary...

To continue reading

Request your trial
4 practice notes
  • In re Estate of Klauzer, No. 20921
    • United States
    • Supreme Court of South Dakota
    • January 12, 2000
    ...Our inquiry is limited to what the testator meant by what he said, not what we think the testator meant to say. In re Trust of Cross, 551 N.W.2d 344, 346 (Iowa Ct.App.1996) (citation omitted). [¶ 10.] In determining whether testamentary language is ambiguous, we have stated: "Language ......
  • In re Will of Uchtorff, No. 04-0288.
    • United States
    • United States State Supreme Court of Iowa
    • March 18, 2005
    ...in trust to a trustee, directing that necessary amounts from the income and corpus of the trust be used to care for her daughter. 551 N.W.2d 344, 346 (Iowa Ct.App.1996). The testator also directed that a portion of the remaining trust assets be given to the testator's brother "to be hi......
  • Matter of Estate of Siebels, No. 3-398/02-1417.
    • United States
    • Court of Appeals of Iowa
    • July 10, 2003
    ...findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. In re Trust of Cross, 551 N.W.2d 344, 346 (Iowa Ct. App. III. PURCHASE OPTION The trial court concluded from the evidence that respondents had a valid option to buy the entire f......
  • In re Sunray Holdings Trust, No. 26722.
    • United States
    • Supreme Court of South Dakota
    • December 11, 2013
    ...are deemed to have selected the trust's language [841 N.W.2d 277]for a reason and understood its effect. See In re Trust of Cross, 551 N.W.2d 344, 347 (Iowa Ct.App.1996) (applying this principle to a will) (“We ... assume the testator selected the language adopted to express his meaning and......
4 cases
  • In re Estate of Klauzer, No. 20921
    • United States
    • Supreme Court of South Dakota
    • January 12, 2000
    ...Our inquiry is limited to what the testator meant by what he said, not what we think the testator meant to say. In re Trust of Cross, 551 N.W.2d 344, 346 (Iowa Ct.App.1996) (citation omitted). [¶ 10.] In determining whether testamentary language is ambiguous, we have stated: "Language is am......
  • In re Will of Uchtorff, No. 04-0288.
    • United States
    • United States State Supreme Court of Iowa
    • March 18, 2005
    ...in trust to a trustee, directing that necessary amounts from the income and corpus of the trust be used to care for her daughter. 551 N.W.2d 344, 346 (Iowa Ct.App.1996). The testator also directed that a portion of the remaining trust assets be given to the testator's brother "to be his abs......
  • Matter of Estate of Siebels, No. 3-398/02-1417.
    • United States
    • Court of Appeals of Iowa
    • July 10, 2003
    ...findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. In re Trust of Cross, 551 N.W.2d 344, 346 (Iowa Ct. App. III. PURCHASE OPTION The trial court concluded from the evidence that respondents had a valid option to buy the entire f......
  • In re Sunray Holdings Trust, No. 26722.
    • United States
    • Supreme Court of South Dakota
    • December 11, 2013
    ...are deemed to have selected the trust's language [841 N.W.2d 277]for a reason and understood its effect. See In re Trust of Cross, 551 N.W.2d 344, 347 (Iowa Ct.App.1996) (applying this principle to a will) (“We ... assume the testator selected the language adopted to express his meaning and......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT