Yancey v. First Nat. Bank & Trust Co. of Minneapolis, Minn. (In re Ellis' Estate)

• Decision Date: 13 December 1938
• Docket Number: No. 44303.,44303.
• Court: Iowa Supreme Court
• Parties: In re ELLIS' ESTATE. YANCEY v. FIRST NAT. BANK & TRUST CO. OF MINNEAPOLIS, MINN., et al. (ELLIS, Intervener).

225 Iowa 1279

282 N.W. 758

In re ELLIS' ESTATE.

YANCEY

v.FIRST NAT. BANK & TRUST CO. OF MINNEAPOLIS, MINN., et al. (ELLIS, Intervener).

No. 44303.

Supreme Court of Iowa.

Dec. 13, 1938.

Appeal from District Court, Floyd County; M. F. Edwards, Judge.

Application in probate wherein it is sought to construe the word “grandchild” in a will and codicils so as to include an illegitimate. Demurrer to the petition was overruled and defendants having elected to stand on the demurrer, judgment was entered in favor of plaintiff as prayed. Defendants and intervener appeal.

Affirmed.

HAMILTON, J., SAGER, C. J., and ANDERSON and DONEGAN, JJ., dissenting.Larson & Carr, of Charles City, and James E. Dorsey, of Minneapolis, Minn., for appellants.

W. H. Salisbury and H. R. Duncan, both of Osage, for intervener-appellant.

R. W. Zastrow, W. G. Henke, Jens Grothe, and John F. Droz, all of Charles City, for applicant-appellee.

STIGER, Justice.

Jennie A. Yancey, guardian of the property of Merritt Milton Yancey, a minor, brought this action to establish the rights of her ward in the estate of Kate G. Ellis, deceased, who died testate on November 15, 1934.

This litigation involves a construction of the following provision of the will of Kate G. Ellis:

“Tenth. All of the rest, residue, and remainder of my estate, if any, of whatsoever nature and wheresoever situated, I give, devise, and bequeath as follows:

(1) One-half (1/2) thereof to the children and grandchildren of the late Charles D. Ellis, of Charles City, Iowa, living at the time of my decease, in equal shares.”

Charles D. Ellis was a brother-in-law of the testatrix. Carlisle Ellis, putative father of plaintiff's ward, Merritt Yancey, is a son of Charles D. Ellis. Merritt Yancey was adopted by plaintiff and her husband, Charles W. Yancey, in June 1917 when he was five months old and since that time he has lived in Charles City, Iowa, with his adopting parents.

The petition alleges that Merritt was born out of wedlock January 1, 1917; that Carlisle Ellis is his father and Charles D. Ellis is his grandfather; that the testatrix, also a resident of Charles City, was the grand aunt of Merritt; that Merritt is entitled to inherit under the last will and testament of decedent, as a grandchild of Charles D. Ellis, the sum of $16,000; that the testatrix, Kate G. Ellis, was fully cognizant during her life time of the existence of Merritt M. Yancey and his relationship to Carlisle Ellis and Charles D. Ellis and that the testatrix had full knowledge at the time of making her will that Merrit was the illegitimate son of Carlisle Ellis.

Carlisle Ellis intervened in the case and defendants and intervener filed the following demurrer:

“That the facts stated in the application attacked do not entitle the applicant to the relief demanded (Code, § 11141 (5) in that under the law of Iowa the word ‘grandchildren’ found in a will does not include illegitimates, unless an intent to include them can be deduced from the language of the will, without resort to extrinsic facts; that neither the Last Will and Testament and Two Codicils thereto of Kate G. Ellis, deceased, nor the application attached show any intent on the part of the testatrix, Kate G. Ellis, to include Merritt Milton Yancey within the term ‘grandchildren of the late Charles D. Ellis' as used in Paragraph First of the First Codicil to her Last Will and Testament; that it therefore appears on the face of the application that neither the applicant nor Merritt Milton Yancey have any share in the residuary estate of Kate G. Ellis, deceased, under her Last Will and Testament and Two Codicils thereto or any right to the relief demanded.”

The demurrer was overruled, the defendants elected to stand on the demurrer, and on October 11, 1937 judgment was entered establishing the claim of Merritt Yancey against the estate of Kate G. Ellis. Defendants and intervener appeal.

[1] The demurrer admitted that Carlisle Ellis is the father of Merritt Yancey, an illegitimate, and that the testatrix knew of this relationship at the time she executed her will.

[2][3] At common law the word “children” when used in wills, deeds, or other conveyances, means legitimate children unless the will reveals a clear intention to use the generic term “children” so as to include an illegitimate child or it is impossible under the circumstances that legitimate children could take. Extrinsic evidence was not admissible to show the actual intent of the Testator. Hill v. Crook, [1873] L.R. 6 H.L. 265; In re Pearce, 8 British Ruling Cases 279; 7 Am. Jur. 715; Jarmin on Wills, 1175.

Appellants state their position as follows:

“We firmly believe that the term ‘grandchild’ as used in a will, by both popular definition and judicial definition, means a legitimate grandchild only and never includes an illegitimate unless the will itself shows a contrary intention, or where it is impossible from the circumstances of the parties for any legitimate child to take under the class.

We firmly believe that where there are legitimate grandchildren and where there is nothing on the face of the will showing an intention to include illegitimates, extrinsic evidence is not admissible to show any actual intent of the testator.”

Appellants rest their case squarely on the common law rule of construction.

The case of Hill v. Crook, supra, is the leading English authority for the common law doctrine and the case of In re Pearce, supra, adheres to the Hill Case. In the note to the case of In re Pearce, we find the common law doctrine, which is expounded in the above cases, severely condemned in the following language:

“A perusal of the decisions leads to the conclusion that this presumption (that the word child meant legitimate children) is most unfortunate and fundamentally unsound. * * * The true rule should be that ‘children’ is a neutral word taking its color from the surrounding circumstances. If it be considered as such, no difficulty will be experienced with the rule that parol evidence as to testator's intention is admissible, as the existence of natural children known to the testator will necessarily create the ambiguity which opens the door to such evidence. In support of this contention that the natural meaning rather than the legal meaning of the term children should be the presumptive meaning, attention is called to the fact that some of the American courts, which have rendered lip service to the English rule have virtually discarded it in rendering their decisions; that later English cases have been much more liberal in permitting a resort to extrinsic evidence and to the circumstance that the judicial committee of the Privy Council, in the case originating in India in which they accordingly felt at liberty to discard the English rule, did so.”

[4] The above criticism of the harsh English doctrine was independent of modern statutes permitting an illegitimate to inherit from the mother, and father, if recognized, which statutes abrogate the common law concept that a child born out of wedlock is the child of nobody.

In the case of Eaton v. Eaton, 88 Conn. 269, 91 A. 191, the court states [page 195]:

“The word ‘children’ in our statute of distributions is interpreted to embrace a mother's illegitimate as well as legitimate children for the simple reason that the law regards the former as well as the latter as her children. In a word, the natural corollary of the English rule that the word ‘child’ or ‘children,’ when used in a statute, is to be restrained to signify legitimates only, is done away with as it logically must be. That corollary is the logical consequence of the proposition that the illegitimate is the child of nobody. When that proposition is transposed into ours that an illegitimate is the child of its mother, then all logical foundation for the corollary that the words ‘child’ or ‘children’ in the statute, will, or deed is to be interpreted as limited to legitimates disappears, and the logical corollary becomes the reverse, so that presumptively the word ‘child’ or ‘children’ in a will embraces offspring legitimate and illegitimate.

That is the principle to be applied to the present case, so that, when the testator made his limitation over to the children of his daughters, he will be held to have included all their children unless a different intent is to be gathered from the will, read in the light of the surrounding circumstances.

We are unable to discover in this will, so read, any intent upon the part of the testator to thus restrict the natural meaning of the words he employed. On the contrary, he, at the time his will was executed, presumably had full knowledge of the existence of the illegitimate child, then seven years of age, of his daughter, and of its illegitimacy. * * * Had he not intended that the illegitimate child should share in the fruits of his bounty as a child of his daughter, it is scarcely conceivable that he would have been satisfied to use the unrestricted language that he did, and language which in ordinary speech knows no distinction between legitimates and illegitimates.”

In the case of Rhode Island Hospital Trust Company v. Hodgkin, 48 R.I. 459, 137 A. 381, the question was whether the phrase, “to the children of my daughter”, as used in a will included an illegitimate child of the daughter. The court held that under the Rhode Island statutes modifying the status of an illegitimate, a child born out of wedlock is a legal child of his mother and is to be so regarded with reference to statutes dealing generally with the legal rights of children, and in the absence of a provision in the will to the contrary the term “children” would include illegitimate as well as legitimate children of the testator's daughter. Referring to an early Rhode Island case, In re Truman, 27 R.I. 209, 61 A. 598, which held that in the construction of a will the word “children” would generally be held to apply to legitimate children only, the court stated:

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