Van Wechel's Estate, In re

• Citation: 241 Iowa 513,41 N.W.2d 694
• Decision Date: 07 March 1950
• Docket Number: No. 47572,47572
• Parties: In re VAN WECHEL'S ESTATE. VAN WECHEL et al. v. WESTRA et al.
• Court: United States State Supreme Court of Iowa

Page 694

41 N.W.2d 694

241 Iowa 513

In re VAN WECHEL'S ESTATE.

VAN WECHEL et al. v. WESTRA et al.

No. 47572.

Supreme Court of Iowa.

March 7, 1950.

Van Oosterhout, Te Paske & Rens, of Orange City, for appellants.

Klay & Klay, of Orange City, for H. C. Moret, Executor of Estate of Henry Van Wechel, Deceased, appellee.

Maurice A. Te Paske, of Sioux Center, for Trinity Reformed Church of Orange City, Iowa, Board of Foreign Missions of Reformed Church of America, Board of Domestic Missions of Reformed Church of America, appellees.

Lewis De Koster, of Orange City, for Gerrit Wagner, Case Wagner, Mrs. Jacob Draapdaal, and Walt Waggonaar, appellees.

GARFIELD, Justice.

The estate is insufficient to pay all debts, charges and legacies in full. The question for decision is whether all general legacies abate pro rata or whether the will clearly shows an intent to prefer the legacies payable to appellants. To 'abate,' as here used, means to reduce a legacy because of the insufficiency of the estate to pay all debts, charges and legacies in full. In re Estate of Hartman, 233 Iowa 405, 408, 9 N.W.2d 359, 362, and citations. See also 57 Am.Jur., Wills, section 1457.

Testator died in 1948. His will, made in 1946, provides first for the payment of debts. Item 2 is a specific devise of a life estate in land to appellants, testator's brother John and sister Winifred. Item 3 devises real estate to Winifred. Item 4 devises real estate to John Westra and item 5 bequeaths to him testator's machinery, parts and businss valued at nearly $50,000. Item 6 is a divise of real estate to the children of a deceased sister. Item 7 is a legacy of household goods to appellant Winifred. Item 8 is a devise of a life estate in land to Harry Tiemersma, an employee, and his wife.

Item 9 provides for the legacies appellants claim are entitled to preference over other general legacies. It states, 'Out of the first moneys in my estate, I give' $10,000 to my sister Winifred and $10,000 to my brother John.

Item 10 provides for legacies of $7,500 to each of two employees, $2,500 to the employee Tiemersma named in item 8, and $5,000 to each of two other employees--total legacies to employees of $27,500.

Item 11 states, 'Out of the remaining cash funds on hand I give' to three religious charities, appellees herein, each $5,000.

Item 12 is a gift to one Waggonaar who predeceased testator (Waggonaar's heirs are also appellees) of $2,000 'out of the remaining cash' and also an automobile.

Item 13 foregives any debts of appellant John to testator.

Item 14 states, 'All the rest, residue and remainder of my estate, if any, I give in trust' to my executor. The income from this residuary fund is payable to appellants for life and then to be divided equally among two of the three appellee charitable institutions and two other charities.

The words of items 9, 11, 12 and 14 italicized by us are relied upon by appellants as showing testator's intent to create a preference as to payment of the legacies to them in item 9.

Total appraised value of the estate is about $216,000. Personal property not specifically disposed of is valued at about $80,000. Claims filed against the estate exceed $6,000. Executor's and attorneys' fees are $9,000. The federal estate tax, principal reason for the deficiency, is about $32,000. After claims, fees and estate tax are deducted, approximately $33,000 remains for payment of the general legacies which total $64,500.

There is no evidence of testator's intent except the will itself. Appellants are apparently testator's nearest relatives. At least the only other relatives mentioned in the will are the children of a deceased sister, devisees in item 6.

The trial court held the general legacies abate pro rata. That is, that the assets available for such legacies be distributed ratably among the donees and that John's and Winifred's legacies in item 9 are not entitled to preference. John and Winifred have appealed.

As appellants concede in argument, items 2 to 8, inclusive, are specific devises (of realty) or specific legacies (of personalty) and items 9 to 12, except for the gift of the automobile in item 12, are general pecuniary legacies. For definitions of specific and general legacies see In re Estate of Hartman, supra, 233 Iowa 405, 408, 9 N.W.2d 359, 361, and citations; Leighton v. Leighton, 193 Iowa 1299, 1313, 188 N.W. 922; In re Estate of Daniels, 192 Iowa 326, 332, 184 N.W. 647; 57 Am.Jur., Wills, sections 1401, 1402.

Where the estate is insufficient to pay all obligations and legacies, unless the will expresses a contrary intent, legacies which are mere bounties, not based upon a consideration (as in lieu of dower or in payment of a debt), abate in this order: (1) residuary legacies, (2) general legacies, and (3) specific legacies. 57 Am.Jur., Wills, section 1459; 69 C.J., Wills, section 2181, page 981. See also Parsons v. Reel, 150 Iowa 230, 129 N.W. 955; In re Estate of Carpenter v. Wiley, 166 Iowa 48, 54, 55, 147 N.W. 175; Carpenter v. Lothringer, 224 Iowa 439, 457, 275 N.W. 98.

It is well settled that general legacies which are mere bounties abate pro rata unless an intention to the contrary is clearly expressed or implied in the will. The presumption is that testator considered his estate sufficient to pay all legacies and that equality was intended, and the burden is on a legatee who claims a preference to show clearly that testator so intended. Of course a testator may indicate his intent that gifts be paid in a certain order of priority. Where such intent clearly appears full effect will be given thereto. No preference will be given, however, where the expressions in the will relied upon are ambiguous.

In support of the above propositions see Porter v. Howe, 173 Mass. 521, 54 N.E 255, 256; Emery v. Batchelder, 78 Me. 233, 3 A. 733; Titus, Adm'r v. Titus, 26 N.J.Eq. 111; 4 Page on Wills, Lifetime Ed., section 1494, pages 314, 315; 57 Am.Jur., Wills, section 1462; 69 C.J., Wills, sections 2171, 2173, pages 976-979; Annos, 34 A.L.R. 1247, 101 A.L.R. 704. See also Parsons v. Reel, supra, 150 Iowa 230, 129 N.W. 955; Sections 635.77, 635.78, Code, 1946, I.C.A.

These authorities indicate that courts in cases of this kind look favorably upon the doctrine 'equality is equity' and are somewhat reluctant to hold that general legacies do not abate ratably.

We think testator's intent to provide for priority of right as to the legacies in item 9, in the event of a deficiency, does not clearly and definitely appear from the language of the will. At best such language leaves the matter in doubt. The authorities seem to agree that where there is doubt as to testator's intent no preference will be decreed but the deficiency must be borne ratably as the trial court ordered here.

An important if not controlling inquiry in this class of cases is whether the will indicates testator anticipated the chance of a deficiency and provided therefor. There is no clear indication in this will that testator anticipated his estate might be insufficient to pay these general legacies in full. The pecuniary legacies in items 9 to 12 and the direction in item 13 to forgive any indebtedness of appellant John are followed by the residuary clause in item 14, 'All the rest * * * of my estate, if any, I give in trust' to my executor, etc. The words 'if any' upon which appellants rely indicate nothing more than that testator may have anticipated there might be nothing left after payment of the legacies in items 9 to 12.

This will does not expressly state that the legacies in item 9 shall not abate or that 'If my estate should be insufficient to pay in full all pecuniary legacies in items 9, 10, 11 and 12 it is my will that they be paid in that order.' Wills frequently contain such provisions which govern the matter of abatement and specify the order of payment of pecuniary legacies in the event of a deficiency. See In re Trust of Stork, 233 Iowa 413, 417, 423, 9 N.W.2d 273, 275, 278; Rexford v. Bacon, 195 Ill. 70, 62 N.E. 936, 937; Sherman v. Woodward, 318 Mass. 234, 61 N.E.2d 128; In re Title Guarantee & Trust Co., 195 N.Y. 339, 88 N.E. 375, 376; Clement v. Whisnant, 208 N.C. 167, 179 S.E. 430, 101 A.L.R. 698, and Anno. 704.

As stated, appellants rely (in addition to the words 'if any' in the residuary clause, item 14) upon the language in item 9, 'Out of...