Widney v. Hess

• Court: Iowa Supreme Court
• Writing for the Court: SMITH
• Citation: Widney v. Hess, 242 Iowa 342, 45 N.W.2d 233 (Iowa 1950)
• Decision Date: 12 December 1950
• Docket Number: No. 47781,47781
• Parties: WIDNEY et al. v. HESS et al.

Page 233

45 N.W.2d 233

242 Iowa 342

WIDNEY et al. v. HESS et al.

No. 47781.

Supreme Court of Iowa.

Dec. 12, 1950.

Rehearing Denied Feb. 9, 1951.

Welch & Welch, of Logan, for Carrie Widney and others, plaintiffs-appellants.

Arthur N. Neu, of Carroll, for Carl J. Hess, Administrator, defendant and cross-petitioner, appellee.

White & Bruner, of Carroll, and Don G. Mullan, of Odebolt, for American Cancer Soc., Inc., intervenor and cross-petitioner, appellee.

Meyers & Tan Creti, of Carroll, for Carroll, Iowa, Elks Lodge, defendant and cross-petitioner, appellee.

Leighton A. Wederath, of Carroll, for Cancer Prevention Soc., intervenor and cross-petitioner, appellant.

SMITH, Justice.

Roswell D. Johnston, late of California but a former resident of Iowa, died leaving three holographic instruments, dated, respectively, April 15, 1946, December 13, 1946, and July 26, 1947. They had been admitted to probate in California and on November 5, 1947, the probate court of Carroll County, Iowa, in ancillary proceedings, admitted all three as the last will and testament of decedent, who owned real estate in Iowa. An administrator with will annexed was appointed.

This suit is brought by some thirty named plaintiffs on behalf of themselves as heirs and of various other unnamed but described persons and groups alleged to be blood relatives and next of kin of decedent.

Defendants are the administrator C.T.A. and various individuals and organizations named in the instruments as beneficiaries. There was intervention by three organizations claiming to be beneficiaries.

Plaintiffs claim: (1) None of the three papers is valid as a will because they are not executed and witnessed as required by Iowa statute, and because section 633.49, Code of 1950 I.C.A. (which purports to allow probate of wills executed in foreign states if executed in accordance with statutes of such states) is unconstitutional and void; and (2) In any event the residuary estate is intestate because of ambiguity in designation of residuary beneficiary.

The trial court held the third will (of July 26, 1947) valid and that it revoked all previous wills, including those dated April 15 and December 13, 1946, and set aside the probate of the latter two; dismissed plaintiffs' petition and the intervention of Cancer Prevention Society, Inc.; held the Elks Lodge of Carroll, Iowa, otherwise known as Carroll, Iowa, Lodge No. 1637, intervenor and cross-petitioner, to be a devisee, but under stipulation reserved jurisdiction for later determination as to the extent of property it is to receive; held defendant Katherine Wilkes a legatee to receive $1,000; and decreed American Cancer Society, Inc., intervenor and cross-petitioner, to be residuary legatee. Plaintiffs and Cancer Prevention Society, Inc., intervenor, appealed.

The instrument dated April 15, 1946, directed the sale of certain Iowa real estate, provided three $1,000 bequests to individual legatees, devised one real estate item to 'Carroll Elks Lodge,' directed payment of debts and certain burial arrangements, named Arthur Neu as attorney and administrator and 'National Cancer Institute' as residuary beneficiary. 'My dog to be given to Joe McClelland, Spirit Lake, Iowa.'

The second instrument, dated December 13, 1946, gave 'Peggy Kent, true name Edna Schaffer' $150 a month for life, 'at her death the remainder of my estate to go to the Society for the prevention of Cancer.' It names the same attorney and Carroll County State Bank as administrator. (Peggy Kent was one of the $1,000 legatees named in the first instrument.)

The third instrument, dated July 26, 1947, is as follows:

'My last will:

'I herewith leave the corner where the oil station is to the Elks Lodge--Carroll Iowa to build a club house on. One thousand dollars to Katherine Wilkes--California Edison Bldg--L.A. Balance of Estate to the National Cancer Fund.

'Roswell D. Johnston.'

I. It is of course true none of these instruments was witnessed as required by section 633.7, Iowa Code 1946, I.C.A. They were however admittedly in decedent's handwriting and were eligible to probate under California law.

Section 633.49, Iowa Code 1946 and 1950, I.C.A., provides: 'A last will and testament executed without this state, in the mode prescribed by the law, either of the place where executed or of the testator's domicile, shall be deemed to be legally executed, and shall be of the same force and effect as if executed in the mode prescribed by the laws of this state, provided said last will and testament is in writing and subscribed by the testator.'

Plaintiffs contend this section is for various reasons unconstitutional and void; also that it was not intended to change the common law rule for devolution of title to real estate, citing Lynch v. Miller, 54 Iowa 516, 6 N.W. 740, and In re Barrie's Estate, 240 Iowa 431, 35 N.W.2d 658, 9 A.L.R.2d 1399, but was intended merely 'to establish the validity of a foreign will free from collateral attack unless and until it would be contested and set aside in a direct proceeding as authorized by law and within two years from the date' of the order of probate.

II. This last contention manifestly cannot prevail. It ignores the explicit language of the statute itself, especially the last clause thereof, which can be read and construed in connection with the other sections of our will statutes without difficulty. It merely creates an exception to the general rule, and applies only to wills executed without the state. Lynch v. Miller, supra, was decided long before Code section 633.49, I.C.A., was enacted. The decision in Re Barrie's Estate, supra, 240 Iowa at page 439, 35 N.W.2d 658, impliedly concedes the validity of the statute as applied to the act of creating a will but denies that it applies to the act of revocation as any part of the act of execution. Neither case supports plaintiffs' argument.

III. Plaintiffs argue the statute, section 633.49, is void because not validly enacted in accordance with the mandate of section 29, article III of the Constitution of Iowa which is as follows: 'Every act shall embrace but one subject, and matters properly connected therewith; which subjects shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.'

Section 633.49 is identical with section 3309 of the Code of 1897, enacted during the Extra Session of the 26th General Assembly. A legislative movement to overhaul the entire statutory structure commenced in the 25th Session. A commission was appointed to study the matter which prepared and printed a proposed new code with 26 titles, each constituting a separate bill, in substantial compliance with Chapter 115, Acts of the 25th General Assembly. Vol. 3, Iowa Code Annotated, page 135 et seq., 'An Outline of Iowa Codes Compilations and Revisions' by Alan Loth. Mr. Loth reaches the conclusion with which we agree that the Code of 1897 'is a true code, the original legislative enactment, superseding all prior statutes of a general nature.'

IV. The history of section 3309 of the Code of 1897, is painstakingly traced in the Record here. The exact text of the section first appeared in the House, March 15, 1897, as a proposed amendment to Senate File 72. It was offered and adopted as section 40, Chapter 2 of that bill. On March 26, 1897, the senate accepted the amendment in accordance with the recommendation of the conference committee.

This does not mean that at this point Senate File 72, or section 40 of Chapter 2 thereof was enacted. Section 40 was merely made a part of Chapter 2 of Senate File 72 to be acted on later. Senate File 72 bore the title 'An Act to revise, amend and codify the statutes in relation to the Estates of Decedents,' and bore that title when later enacted as Title XVII, with section 40, Chapter 2, thereof as section 3309, of the new code.

Plaintiffs say that section 40 of Chapter 2, thus incorporated into Senate File 72, later to become section 3309 of Title XVII was the only 'section' that had no prior legislative history. That seems to be literally true but there were new provisions added to other sections, e. g., see and compare sections 3274 and 3276, respectively, with corresponding sections 2326 and 2329-2330 of the Code of 1873.

Plaintiffs argue that section 3309 had no title 'but was simply offered as an amendment to Title XVII and not as a Bill to Amend Title XVII or any section or chapter thereof.' The argument confuses the appearance and offer of the section as an amendment to Senate File 72, with the final action on the Bill after it contained section 40, chapter 2, which became section 3309.

V. We have then to determine whether the title, 'An Act to revise, amend and codify the statutes in relation to the Estates of Decedents' was sufficiently broad to cover section 3309 as a part of the Bill. Plaintiffs expressly disclaim any contention that the title was insufficient as to other sections of the Bill.

Their position is inconsistent and untenable. After section 40, Chapter 2 was added to Senate File 72 it was just as mcuh a part of the Bill as was any other section. Ninety days after passage Title XVII became a part of the statutory law, not because any part of it had been a part of the Code of 1873 but because it was duly enacted as a part of the Code of 1897.

Was the title to Senate File 72 sufficient? We think it clearly was. In the first place (but not of controlling importance here) for the purpose of a constitutional provision such as is involved here a codification or revision does not relate to more than one subject, and a title expressing that subject is not insufficient for failure to specify each subject to which the statutes, as revised, relate. 59 C.J. 798 (§ 376), 889 (§ 483); 50 Am.Jur., Statutes, § 203.

But of decisive importance here, this court has always...