Yarolem's Estate, In re, 48838

• Decision Date: 09 May 1956
• Docket Number: No. 48838,48838
• Citation: 247 Iowa 849,76 N.W.2d 770
• Parties: Matter of the ESTATE of Lillie E. YAROLEM, Deceased. Barbara Fern RINGEN, Plaintiff-Appellant, v. Truman YAROLEM, Executor of the Estate of Lillie E. Yarolem, Deceased; Truman Yarolem, Individually; and Russell Yarolem, Defendants. Linda Davis, Defendant-Appellee.
• Court: Iowa Supreme Court

Page 770

76 N.W.2d 770

247 Iowa 849

Matter of the ESTATE of Lillie E. YAROLEM, Deceased.

Barbara Fern RINGEN, Plaintiff-Appellant, v. Truman YAROLEM, Executor of the Estate of Lillie E. Yarolem, Deceased; Truman Yarolem, Individually; and Russell Yarolem, Defendants.

Linda Davis, Defendant-Appellee.

No. 48838.

Supreme Court of Iowa.

May 9, 1956.

Schoenthaler & Lee, Maquoketa, for appellant.

Walter J. McCarthy, Maquoketa, for executor of decedent's estate.

Asher E. Schroeder, Maquoketa, for defendant Linda Davis, appellee.

BLISS, Justice.

The contest in the Court below was solely between appellant and Linda Davis, a minor, and her guardian ad litem, Asher E. Schroeder, as all other defendants defaulted. Appellant filed a brief and argument in this Court but none was filed by appellee, and the appeal was not orally argued.

The testatrix had three living children at her death, a daughter, the appellant, and two sons, Truman and Russell Yarolem. She died August 12, 1954, leaving no surviving spouse and no heirs other than the three children. On June 8, 1951, she executed her last will which was duly probated on September 17, 1954. Her son, Truman, was appointed executor and qualified. The estate is undistributed and unsettled.

Paragraph 2 of the will, which is the one in controversy, provides: 'I devise and give to my granddaughter, Linda Davis, subject to a life estate to my daughter, Barbara Fern Stout, for a period of 10 years from and after the date of my death, the real estate property * * *'--designating a nine-acre tract.

In paragraph 3 of the will she devised, in equal shares, to three daughters of her son, Truman, a farm of 135 acres 'subject, however to a life estate which I give to my said son, Truman.'

In paragraph 4 of the will, she devised to her grandson, Wayne Yarolem, a farm of 155 acres, 'subject to a life estate which I give to his father, Russell Yarolem * * *.'

In paragraph 5 all of the furniture in the residence occupied by the testatrix is given to appellant, except the piano which is given to Rita Greene, a granddaughter of testatrix. In paragraph 6 all of the equipment formerly used in a maple sugar camp operated by testatrix and her husband is given to Truman. In paragraph 7 all the personal property on the farm devised in paragraph 3 to the three daughters of Truman is given to the latter.

Paragraph 8 of the will, the residuary clause, provided: 'All the rest and remainder of my estate I give, devise and bequeath to my following said children, share and share alike, Barbara Fern Stout, Truman Yarolem and Russell Yarolem.'

The petition for the construction of the will, filed April 7, 1955, alleges in substance the factual matters noted above; the inability of the plaintiff and defendants to agree as to the true construction of the will, particularly paragraph two thereof, in that plaintiff believes, and alleges, the fact to be that under the terms of said paragraph, there is willed and devised therein to the plaintiff a life estate in and to the real estate described therein, and the remainder interest therein to Linda Davis. The prayer of the petition is that the Court adjudge and decree the plaintiff to be the owner of a life estate in said real property, and that Linda Davis is the owner of the remainder interest therein, being the entire interest subject only to the life estate of plaintiff, and that Truman Yarolem and Russell be adjudged and decreed to have no interest in said real estate. Other and further relief as may be equitable was also prayed for. Notice of the filing of the petition was duly served on all defendants.

On May 11, 1955, linda Davis, through her guardian ad litem, filed answer, admitting all allegations of the petition, but denying those alleging that plaintiff was devised a life estate in the nine-acre tract of land devised to Linda Davis, in paragraph 2 of the will.

At the hearing on the petition and answer held May 25, 1955, no testimony was introduced, and it was stipulated that Linda Davis is the daughter of plaintiff, Barbara Fern Stout, now Barbara Fern Ringen, and that Linda is twelve years old and plaintiff is thirty-eight years old. On June 7, 1955, the trial court filed its order finding: '1. That Linda Davis * * * is entitled to the fee simple title of the property described. 2. That the clause 'subject to a life estate to my daughter Barbara Fern Stout for a period of 10 years from and after the date of my death', is ambiguous, uncertain, vague and unintelligible and is void and of no effect to cut down the fee devised to Linda Davis.'

I. As this Court, and courts universally, have stated, the primary and cardinal rule of a court in construing any testamentary writing, is to ascertain and carry out the intent of the maker of the instrument, considering it as a whole and giving effect to each and every provision thereof, if reasonably possible, and thus avoid any construction or interpretation which would defeat the manifest purpose so expressed. This rule has so often been announced by this Court that extensive citation of our opinions is unnecessary, and, because of the diversity of the facts in these cases, precedents aid only in the statement of pertinent general principles. Elberts v. Elberts, 159 Iowa 332, 334, 141 N.W. 57; Anderson v. Anderson, 227 Iowa 25, 31-32, 286 N.W. 446; Dickerson v. Dickerson, 200 Iowa 115, 119, 202 N.W. 601; In re Estate of Syverson, 239 Iowa 800, 804-806, 32 N.W.2d 799; In re Estate of Hellman, 221 Iowa 552, 555, 266 N.W. 36; Canaday v. Baysinger, 170 Iowa 414, 417-418, 152 N.W. 562; In re Estate of Edwards, 231 Iowa 71, 72-73, 77-78, 300 N.W. 673; Mapes v. Rose, 187 Iowa 289, 291, 174 N.W. 235; Carman v. Davis, 193 Iowa 1076, 1078, 188 N.W. 892; Meek v. Briggs, 87 Iowa 610, 616, 54 N.W. 456, 43 Am.St.Rep. 410; In re Estate of McCulloch 243 Iowa 449, 456-458, 52 N.W.2d 67; In re Estate of Johnson, 238 Iowa 1221, 1227, 30 N.W.2d 164; In re Guardianship of McCauley, 213 Iowa 262, 264-265, 235 N.W. 738.

II. It is true that Paragraph 2 of the will is perhaps ineptly drawn, but reading it as a whole and giving consideration to every part thereof in context, any seeming inconsistency therein is more superficial and specious than real. As stated by Weaver, C. J., in Hiller v. Herrick, 189 Iowa 668, 670-671, 179 N.W. 113, 114: 'That the intent of the testator is to prevail is conceded. It is the most familiar rule or phrase in the law of...