Opinion
No. 3-762 / 03-0550
Filed October 29, 2003
Appeal from the Iowa District Court forCrawford County, Richard J. Vipond, Judge.
Plaintiff-appellant appeals the district court's grant of summary judgment to defendants-appellees following plaintiff's action for declaratory judgment regarding the interpretation of Martha Schrader's will. AFFIRMED.
Gregory Siemann of Green, Siemann Greteman, P.L.C., Carroll, for appellant Janice Schrader.
Bruce Becker of Vest, Becker Murray, Sac City, for appellant Estate of Martha Schrader.
Dee Ann Wunschel and Russell Wunschel of Wunschel Law Firm, P.C., Carroll, for appellee Kathleen Jackson.
Brian Fairfield of Norton Norton, Attorneys at Law, P.C., Lowden, for appellee Keith Jackson.
Considered by Sackett, C.J., and Miller and Hecht, JJ.
Plaintiff-appellant Janice Schrader, individually and as executor of the estate of Martha Schrader, appeals the district court's grant of summary judgment to defendants-appellees Kathleen M. Jackson and Francis Keith Jackson, following plaintiff's action for declaratory judgment regarding the interpretation of Martha Schrader's will. On appeal plaintiff argues the district court erred by ruling there was no genuine issue of material fact and granting defendants summary judgment. We affirm.
Martha and Elmer Schrader were husband and wife. Elmer executed a will on April 29, 1974. Martha allegedly executed a May 1974 will with provisions that mirrored the provisions of Elmer's will. Similar to Elmer's will, Martha's will provided that each of her two daughters, Kathleen and plaintiff Janice, receive $1.00, and that the rest of her estate go to her husband, Elmer. In the event of the death of Elmer and Martha "in a common disaster or car accident," Martha's will provided that their entire estate go to their daughter, plaintiff Janice. The will made no provision in the event that Elmer predeceased Martha.
Shortly after Elmer's death, Martha executed a subsequent September 29, 1992 will bequeathing $100,000 in trust to Kathleen and the remainder of her substantial estate to Janice. That 1992 will was contested by Kathleen. A jury determined Martha lacked testamentary capacity, and the district court set aside the will. We affirmed the district court. See Jackson v. Schrader, No. 01-0427 (Iowa Ct.App. July 3, 2002).
Elmer's will provided that the residue of his estate go to his wife, Martha.
Elmer's will similarly provided their entire estate go to Janice.
Elmer's will made no provision in the event that Martha predeceased him.
Elmer did predecease Martha. In seeking declaratory judgment plaintiff seeks to demonstrate that the overall scheme of the will was to give the entire estate to plaintiff. By concluding that Martha failed to provide for the contingency which occurred, specifically Elmer's death before hers, and consequently ordering an intestacy distribution, plaintiff argues the district court is frustrating the testator's intent.
II. SCOPE OF REVIEW
Although in equity, our review of an appeal from the grant of summary judgment is on legal error. Norwest Credit, Inc. v. City of Davenport, 626 N.W.2d 153, 155 (Iowa 2001); Keokuk Junction Ry. Co. v. IES Indus., Inc., 618 N.W.2d 352, 355 (Iowa 2000) (citation omitted) ("Notwithstanding the nature of this equitable action, the court `cannot find facts de novo in an appeal from summary judgment.'"). Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Iowa R.Civ.P. 1.981(3).
Courts have no authority to make or remake the will of a testator. In re Estate of Zang, 255 Iowa 736, 738, 123 N.W.2d 883, 884 (1963). In cases of will interpretations, it is well-settled that the testator's intent is the polestar. See In re Estate of Larson, 256 Iowa 1392, 1395, 131 N.W.2d 503, 504-05 (1964). The rule is well established that a testator's intention must be gathered from the language of the instrument where such language is reasonably clear and unambiguous. In re Estate of Lamp, 172 N.W.2d 254, 256 (Iowa 1969). Of course, the question is not what the testator meant to say but what he meant by what he did say. Id. A court may not, under the guise of ambiguity, add to the provisions of a will. In re Estate of Kiel, 357 N.W.2d 628, 630-31 (Iowa 1984). A court may not, under the guise of ambiguity, make or remake the will of a testator. Id. at 631. A court may not, under the guise of ambiguity, implement broad principles of equity and justice. Id.; In re Estate of Fairley, 159 N.W.2d 286, 288 (Iowa 1968). Wills are to be construed, if possible, to avoid partial intestacy. Lamp, 172 N.W.2d at 257. If the language of a will is clear and unambiguous, however, we cannot, under the guise of construction, rewrite it to do for the testator that which she failed to do on her own behalf. Fairley, 159 N.W.2d at 291.
III. ANALYSIS
On appeal plaintiff argues the wording of the will demonstrates Martha did not intend for Kathleen to take anything except $1.00, and that in the event neither parent was living, Martha intended, as evidenced by the common death clause, for plaintiff to be sole beneficiary of the entire estate.
The district court concluded as a matter of law that Martha's will was unambiguous and therefore not subject to interpretation through extrinsic evidence, in spite of what the court determined was plaintiff's "almost certainly correct" contention that Martha intended to give plaintiff all of her property if Elmer predeceased her.
We agree with the district court that the will is unambiguous and not subject to interpretation through extrinsic evidence. Extrinsic evidence is not allowed to assist in interpreting a testator's intent if there is no ambiguity, patent or latent, in the will. Kiel, 357 N.W.2d at 630 (An examination of extrinsic circumstances is not allowed where the terms of the will are plain and unambiguous; where there is no patent ambiguity, a will must be construed as written unless some latent or hidden ambiguity appears.).
What we have in this case is a missing term, and as the district court held, Iowa common law does not construe a missing term, no matter how clearly unintentional, as an ambiguity. As we stated earlier, a court may not, under the guise of ambiguity, add to the provisions of a will. Kiel, 357 N.W.2d at 630-31. In In re Estate of Fairley, 159 N.W.2d 286, 287 (1968), the testator provided in her will that two of her three sons each take one third of her estate, and that these two sons hold the last third of the estate in trust for the benefit of her third son until his death, at which time the two sons were to divide the trust equally between themselves. The testator later executed a codicil for purposes of adding an additional sum of $2500 to the trust fund for her third son. Fairley, 159 N.W.2d at 287-88. In executing the codicil the testator neglected to make any mention of the distribution of the other two thirds of the estate as she had in the original will, in spite of her stated intention to address "all of the rest, residue and remainder" of her estate. Id. at 288. It appeared fairly obvious the testator in that case, in adding $2500 to the one son's trust, simply forgot to re-provide for the other two thirds of her estate as she so clearly had in the will. Id. at 289. Nevertheless, the court refused to write in a provision which the will as modified by the codicil simply did not contain. Id. at 292. In so doing, although the court recognized its preference to construe wills to avoid intestacy, especially considering the testator's stated intent to dispose of all of her property, it nevertheless reasoned this preference could not be used to supply provisions of a will which simply were not there. Id. at 289 (citations omitted).
The plaintiff points out as an alternative avenue to relief the doctrine of gift by implication which permits a court to look at a general plan of distribution in a will and, drawing upon that plan, determine appropriate testamentary distributions if contingencies arise which were not anticipated by the testator. This doctrine has been described in the following way:
When a testator's will clearly reveals a general plan or intention as to the disposition of his property, and a situation arises that is not within the express language of the will, such general plan may be regarded as existing but incompletely expressed, and the failure to provide for the situation inadvertent rather than intentional, and a gift may be implied for the purpose of completing the general plan.
Russell v. Johnson, 327 N.W.2d 226, 230 (Iowa 1982) (quoting Davis v. Davis, 258 N.E.2d 277, 282 (Ohio Ct. C. P. 1970)).
In seeming contradiction to the rules cited in Kiel and Fairley forbidding the use of extrinsic evidence for purposes of interpreting plain and unambiguous, or even missing terms, the supreme court has stated the following explaining the doctrine of gifts by implication in Porter v. Porter, 286 N.W.2d 649, 654 (Iowa 1979), a case similarly involving an unambiguous will:
While this court has recognized the importance of the requirement of written expression of the testator's intent by [looking exclusively at the meaning of the words used], see, e.g., In re Estate of Fairley, 159 N.W.2d 286, 288-91 (Iowa 1968), we have also recognized that in order to give proper respect to the testator's intent a court may determine that the testator made a gift by "necessary implication" from his will. . . .
The supreme court later stated the following in Russell:
We refused in Porter and we refuse here to accept the argument that a literal translation must be our sole method of interpretation. . . . In ascertaining the intent of the testator, which is the guiding light in will interpretation, we rely primarily on the language contained in the will; however, the substance and intent, rather than the words, are to control. . . . To ascertain the substance and intent we examine the entire will, and the circumstances surrounding decedent at the time he made the will, to determine the scheme of distribution and, ultimately, the testator's intent. This examination is subject to the limitation, prevailing generally, that extrinsic facts and circumstances cannot be resorted to in order to defeat the plain and unambiguous language of the will.
Russell, 327 N.W.2d at 229 (emphasis added). In interpreting wills it would seem that either the language in the will or the testator's intent ultimately controls. The above excerpt from Russell indicates first that intent controls and then that language controls. Given the rules in Fairley and Kiel, we do not see how intent can ever ultimately control if the language of a will is unambiguous.
The doctrine of gift by implication is explained in Russell and Porter as a seeming alternative means of will construction , one in which the intent of the testator, more than the strict construction of his words, guides the interpretation of the will. In carrying out that alternative construction, we are seemingly given the latitude to examine the intent of the testator as it is exhibited by (1) the terms of the will and scheme of distribution, as well as by (2) the facts and circumstances surrounding the testator at the time the will was written. Porter, 286 N.W.2d at 652. Yet in performing this analysis we are met with the very same barrier we were met with in our initial analysis of the will construction: under Kiel and Fairley we cannot look to extrinsic evidence, specifically the facts and circumstances surrounding the testator, if we are seeking to provide for a missing term.
Therefore, in determining whether plaintiff was the beneficiary of a gift by implication, we are limited to looking at the four corners of the will to determine Martha's intent. In order to demonstrate this gift by implication, plaintiff must demonstrate a probability of implication so strong that a contrary intention cannot be supposed. Porter, 286 N.W.2d at 655. As the district court reasoned, plaintiff cannot meet this standard. Unlike in Porter, there was no term in Martha's will disinheriting Kathleen. Further, plaintiff, who was bequeathed $1.00, received equal treatment with Kathleen except in the rare circumstance of a common disaster resulting in the death of both of their parents. The district court was correct that the will itself is not adequate evidence of a testamentary scheme implying a gift to plaintiff of her mother's entire estate in the event that Elmer predeceased Martha.
We affirm the district court's grant of summary judgment.