Westerfelt v. Smith
| Decision Date | 14 December 1926 |
| Docket Number | 37482 |
| Citation | 211 N.W. 380,202 Iowa 966 |
| Parties | ELDON WESTERFELT, Appellant, v. ADA SMITH et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Louisa District Court.--OSCAR HALE, Judge.
Action for the construction of a will. The court dismissed the plaintiff's petition, and he appeals.
Affirmed.
Nichols Tipton & Tipton, for appellant.
Arthur Springer and E. P. Ingham, for appellees.
FAVILLE J. DE GRAFF, C. J., and STEVENS and VERMILION, JJ., concur.
This cause is submitted upon a stipulation of facts, from which it appears that the testator, J. F. McGill, was twice married. He had a son by his first wife, named Eldon McGill. The testator and said wife were divorced, and the wife retained the care and custody of said child. She married one Westerfelt, and the said child was known thereafter as Eldon Westerfelt. The said son later married, and became the father of the appellant. The father died, leaving the appellant as his only surviving heir at law. The testator, J. F. McGill remarried, and his wife predeceased him. At the time of his death, he left surviving him the appellees, who are the children of his second wife, and they, together with the appellant, are his sole heirs at law. The will in controversy was executed by the testator on or about the 5th day of April, 1921. The provision in said will in controversy in this action is as follows:
The original will has been certified to this court for our inspection. Appellant contends that, being one of the lawful heirs of the testator, he is entitled to participate in the estate, under the terms of the will. Appellees contend that they are specifically designated as the sole beneficiaries of the testator, under the terms of the will. We have many times said that the chief consideration in construing a will is to determine the true intention of the testator, as expressed in the will, and to carry out said intention as so expressed. In arriving at the intention of the testator where there is an ambiguity in a will, parol evidence is admissible, not to change and vary or reform the written instrument, but to disclose the circumstances under which the same was executed, as said circumstances may bear upon the relation of the parties and evidence the intention of the testator. The record in this case discloses that, after the divorce between the testator and his first wife, all relations between them appear to have been entirely severed and it appears that the appellant at no time during the life of the testator ever visited with him or had any relations whatever with him. The seven legatees named in the will are the children of the second wife of the testator. The bequest to the "lawful heirs" of the testator, naming them individually, must be construed in the light of the circumstances and conditions surrounding the testator at the time, in order to determine his purpose and intent. The contention of the appellant is that he is one of the lawful heirs of the testator, and as such is entitled to participate in the will. The will does not merely make a general bequest to the lawful heirs of the testator. It specifically designates, names, and makes certain the "lawful heirs" whom the testator selects as his beneficiaries. Each of the persons named in this bequest is the lawful heir of the testator, and within the general class referred to. The testator did not by this bequest intend to, nor did he, bequeath his property merely to a class designated as "lawful heirs." He did more than this. He definitely specified certain persons of this class who were to...
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