*1 age defendant, background Kelley pass- and remarked As Judge James court, possibility imposes help, of future rehabilitative ing in trial this task sentence DeRaad, years 164 we conclude a sentence of 10 con- heavy burden. State v. finement at hard labor in the Men’s (Iowa 1969), we said: Reformatory proper at Anamosa is a sen- “ on review ‘The trial court and we Code, 1966, tence under section pertinent consider weigh should Proper such judgment is the of this court. sentence, determining proper matters in action to correct the trial record shall offense, the including the nature of the 793.24, Code, be taken under section circumstances, age, attending defendant’s are assessed to Costs defendant. Affirmed propensities character and and chances with sentence this court. duty his reform. The courts owe a All concur. public as much as to defendant Justices pun- determining proper sentence. The ishment should fit the crime and both Law, C.J.S.,
the individual. 24 Criminal 1980.’”
The American Bar Association Stan- Sentencing
dards on Alternatives and Pro- Draft,
cedures, Approved 1968,provides: In the Matter of ESTATE * * * Except very (d) “2.1 for a few NOE, Cecil A. Deceased. offenses, particularly except serious No. 54782. under circumstances set forth types tion 2.5(b) term certain (special Supreme Court Iowa. of offenders), the maximum authorized Feb. prison years term ought to be five only rarely ten.”
“2.2 principle: judicial discre- General imposed
“The sentence in each case
should call for the amount minimum
custody or confinement which is consist-
ent protection public, with the
gravity of the offense the rehabilita-
tive needs of the defendant.”
We have sent for studied
presentence investigation in report which juvenile
cludes defendant’s record and two
psychiatric years. prior evaluations made in years
He was 18 old at the time of the crime.
His overt crimes which brought him before juvenile breaking courts include one
and entering liquor store Minnesota
and stealing therefrom three bottles
liquor. pur The other incidents concern
chase liquor, of beer and theft of beer and
writing bad checks. study record,
From our consider- involved, the serious nature of the crime
Trial court held adverse to executors and they appeal. affirm. We Decedent, County, a resident of Benton 13, 1967, died testate November survived Anna, sons, his wife three and two daughters. person- His estate consisted of $51,729.55, alty worth joint property and $30,692.89, life insurance in the amount of $233,275.00. and real valued at Debts, charges and federal estate taxes to- $53,047.49. taled provides Decedent’s will his wife receive personalty absolutely. is addition- She ally granted a proper- life estate in all real ty, children, remainder being to five each specific parcel. devised a Although the payment just directs of all debts and estate, against claims pro- it makes no vision as to abatement.
Executors used property be- queathed decedent’s wife for aforementioned obligations. estate They then filed a Final Iowa Inheritance Return, showing Tax $3,232.08, tax due of premised upon personalty abatement of de- vised Department to the wife. thereafter advised executors to the effect such abate- approach ment improper, the correct being of abatement as 1966, The Code Section Accord- 633.436. ingly $1,570.59 an additional as- tax was sessed. paid
Executors this additional assess- ment, then initiated present refund ac- They consistently have contended pursuant be should to The Code Mossman, Grote, by Keith Mossman & 1966, e., Section i. estate obliga- Vinton, executors-appellants. for paid tions should be first out personalty Turner, George Atty. Gen., surviving spouse, left the Richard C. since to abate the Gen., Harry Atty. Murray, Sp. Asst. real specifically W. devised to re- Atty. Gen., appellee for Griger, M. Asst. maindermen children would defeat dece- Department Revenue. testamentary plan. dent’s Although there
is some conflict in the record executors contend the Iowa tax under inheritance RAWLINGS, Justice. would, approach aforesaid, $3,- Action executors of Cecil A. Noe’s 232.08. (decedent) against Department Department, answer, again took the of Revenue refund of (Department) governed by alleged position abatement overpayment. should be inheritance tax
36 n
* *
633.436, e.,
property devised
i.
cod
tax
ification
preference
Iowa inheritance
first abated.
to the widow
springs
$4,802.67.
from
would be
such cases as
re
thereunder
Estate
Hartman,
9 N.W.
application trial
denying the refund
2d
where the court
the appellee
held
extraordinary circum-
(spouse) took under
purchas
the will as
the alter-
application of
justifying
stances
*3
er,
specific
legacy
hence
nephews
From
provisions of
633.437.
native
§
nieces must abate before a
appeal.
adjudication executors
legacy
spouse
to a
who elects to take un
der the will.”
is
instantly presented
issue
The sole
in accord
should be
whether
substance,
III.
pro
633.437
§
These
or
633.437.
with Code
633.436
§
§
vides for a contrary order of abatement
forth at
are set
enactments
legislative
only in that unusual
gener
case where the
Kraft,
Estate of
in the case of In re
length
al scheme
for in
633.436would
§
need not be
(Iowa), and
For reasons hereafter stated persuasive. proposed is to tion construction tion executors us of executors’ would, any be- effect, negate serve to V. es- personalty widow since quest of claims the value thereof. Stat- tate exceed settled, “Inceptionally it is well in cas- otherwise, so have us executors would ed this, es such as testator’s intent (1) completely defeat as to construe the will polestar expressed if must con- provision gives of decedent’s that all trol; gleaned intent (2) that must be In that re- to his wife. of, language from (a) a consideration consistently gard has viewed this court contained the scheme (b) within of a will which with favor construction distribution, (c) the circumstances every contained provision gives effect surrounding testator at time the Manley, executed, v. therein. Watson existing properly estab- (d) Also, stated in *4 facts; 130 N.W.2d (3) lished technical rules of N.W. Miguet, 185 Estate of of In re only if case construction should be resorted to 2d at 513: clearly ambiguous, conflicting, the will is any or testator’s intent is for reason un- “ *** testamentary provision if a supplied). re (Emphasis certain.” In susceptible two construc- reasonably to Miguet, Estate of 513 185 N.W.2d tions, inoperative, making it void or one (Iowa). rendering and effec- it valid the other tive, accepted, the must be the latter We find decedent’s will neither unusual Accord, Layton v. whole, rejected.” former ambiguous. nor Construed as a it 623, 626, Tucker, 23 N.W.2d 237 clearly evidences an intent on testator’s part provide to first for his wife Anna in event she survived him. This intent stated, application of execu- Briefly the bequest per- her of all manifested to destroy theory obviously tors’ would sonalty and the life creation of estate. See bequest personalty to decedent’s absolute of Kraft, In re Estate of 186 628 unques- it widow. In other words would (Iowa). And fact that decedent de- testamentary plan. tionably defeat testator’s specific vised remain- tracts of land to the adopt approach. that not elect to We do
dermen
conclu-
does not detract from this
sion, being nothing
than
more
evidence of
Affirmed.
secondary plan
purpose.
or
In
of
light
foregoing
per-
are
we
concur,
BECKER,
except
J.,
All Justices
contention,
suaded
premised
executors’
on
dissents,
HARRIS, J.,
takes
who
who
provision
inference and an isolated
of the
part.
will,
must fail.
aWhen
construed as
whole,
sufficiently
does
in
not
clear and
BECKER,
(dissenting).
explicit
Justice
intent,
contrary
terms disclose a
provisions for the
widow lieu of dower
respectfully
dissent.
rights
must
prefer-
be accorded
probate
sections
I.
abatement
Our
Artz,
ence.
In re Estate of
633.437, Code, 1966,
al
have
633.436 and
1064, 1071,
418;
120 N.W.2d
Nolte v.
of inter
ready
problems
caused difficult
Nolte,
868, 875,
881;
247 Iowa
76 N.W.2d
Kraft, 186 N.
pretation.
In Re
Estate
Hartman,
In
re Estate of
1971);
Re Estate
(Iowa
In
W.2d
VI. a difference even if the There is instant atten additional opinions will were needs ambiguous require so which as to con- two struction, executors’ contention must still plied to sets of his debts. If he recognize section 633.436 cases Both not, provisions does then the this and one abatement
up a clear lay protect to tion down rules which purposes is re- chief the formula’s garded approximating indi- spouse. Both cases also surviving However, exception may be indicated provides an his intent not cate only by express designation an of a under certain fund cases differ state- the two circumstances. Where ment the order in which to consider assets to examined inis the sources applied, implied pur- a different but also dictate circumstances pose the general In Re Es- the devise or tes- In both of abatement. manner Thus, commonly Kraft, tamentary now it is supra, the case tate of that, statute, held decided, to the will even the absence of the court looks being wife, general persons legacies no further. testator and case, with to which the is in respect the trial court supra, Twedt parentis, preferred loco but are to be to oth- this looked legacies in er the same class because “provisions more importantly probable purpose accords express or im- with testamentary plan and the Moreover, legacies. plied purpose the devise.” mentary important in plan is often deter- important, par- distinction is above mining matters of abatement when the ticularly in this case. Kraft the court against surviving elects take *5 satisfy itself enough in the will to may the will. The same be true where Indeed, there was no further. and looked place provide takes to for the in Twedt do But no need to otherwise. provi- heir. pretermitted share The itself, will, in and of in this case the and (b) sions subsection [Sec. 633.437] in clearly testator’s intention does not state embrace these and other situations of pay to debts to the source of funds relation similar character.” statute, the It to me that and taxes. seems Committee comment us also examine The Iowa Bar section directs 633.436,1.C.A., rule testamentary me reads: plan (synonymous to the plan) the term estate and with the ** * adopts the mod- This section devise. If we implied purpose the explicit ern rule of abatement makes problem is follow this the directive whole shall abate the order in which the share perspective. in a We considered different contrary testamentary in the absence of relatively rigid longer confined to no intent.” canons but are told will construction elsewhere; e., look i. indicate the These comments would dispositive ar- plan as evidenced to determine thrust of the section is rangements such as testator’s Only the intent remains after tor’s intent. insurance, in- jointly property, life owned in section undetermined is the like, trusts and to ter vivos least, Thus, to me at use 633.436applied. disposition size entire rule; use of 633.437 should be holdings. exception. 633.436should simply 633.437 is section It submitted an of section 633.437 as Consideration plan- recognized complexity “exception” probably poor terminolo- es- only one tool ning. The will Probate gy. The comment to the Model recognizes that not planner. It also tate Code, the Iowa from which every manages provide for every plan statute was taken reads: precise language. contingency in clear in the abatement Thus when “A determine testator plan the the entire ap- defeat 633.436would estate are assets his It percentage dren various interests. with provide order of abatement court should intend- is inconceivable to me that testator intent the testator. to effectuate the bequests intended) (or ed could have his will executed In this case children to be of remainder interests to the years both 70 were and his when he coming up on their with conditioned land valued acres of owned 611 old. He pending $50,000 paid to be death taxes $233,200. His years later at three property. their mother’s use of the Sav- U.S. Government included litigants on the letter of $4900, If the insist certificates of ings at Bonds valued ap- rights in the solutions (all their this case checking accounts careful- deposit and un- proach the ridiculous. alternative limits) One federal ly kept within the insurance majority’s opinion is to sell the re- de- der the $30,000, joint certificates of valued proce- probate wife mainder interests under our savings posit accounts with buy must $10,000 insur- In such event widow $20,400 and life dures. valued at possibly remainder interests or see his ex- those widow and ance. Thus testator’s oth- liquid, go them to adverse holders. $66,000 quick, ecutors had some borrow er alternative is for the children to debts federally insured assets to handle the money pay interest until their and federal death taxes (minimal) and state the fact mother The record reflects dies. planning if the entire estate situation cannot afford to that most of considered.1 proportionate out of their pay their share enough liquid personal More than assets holdings. own were to take care of foreseeable destroys Either of the es- requiring these solutions contingencies. Section tate Both the executor and the wid- of estate taxes from the estate present problem here ow must have known this because does not because pay the funds of the estate were used to there sufficient funds when taken were pay debts and taxes and the widow makes (cf. 633.352) with income Section out, appellant points complaint. had As obligations. widow Testator’s *6 practical placed insurance, personal property construction on the will joint post-tax parties weight.2 income from of should have some payment 600 acres Larson, 131 productive Re Estate of farm land to take care of her plan- (1964). needs. While the will or other estate 503 ning might document well have be- difficulty conflict occasioned specific plan taxes, for a for a seems and 633.437 tween sections 633.436 plan predicated liquid on the use these changes written into to rise from several assets to take care debts taxes First the Iowa probate code. the new plan makes eminent If sense. such a is not Probate to the Model draftsmen added used the mention life estates and re- to a surviv- “except properly devised Code meaningless. mainders is and 4 spouse” to subdivisions surviving
Understandably, actually overprotecting the decided he thus always not to preserve spouse (the spouse would elect like a remainder interest can Second, will). real and the real estate his children after his take under alike, treated thus personal wife died. Further he knew and indicated just on the go. rigid he the farm land to fixing how wanted properties chil- Various went various entire estate. (urged opposite in form of Value of solution It is obvious the crops state) farm is not included. This substan on the would save them $14,800 tially death. tax than value was testator’s in federal estate costs more they pay in taxes. Cf. -state will have to States, Analysis Actually F. in Reed v. United the widow and executors showed Supp. 1228, (E.D.Mo.1970). honesty real in their of solution. choice apparent recognition problems aris- of abate- inflexible order
ing from such an This al-
ment, was added. section 633.437 manner different
lows the “provisions if the express testamentary plan, or purpose of devise would implied open Admittedly in- this is
defeated.” among only devi- litigation,
vitation to here, among compet- but as
sees heirs
ing taxing Yet it is the ave- bodies. justice do on a case
nue afforded to accept the
case basis. This court should
responsibility and order a new abatement protect the in- (with fairly care surviving spouse) if
terest implied
mentary plan
purpose of dictates. We the devise so
have such here. case judgment substituting our
This omission is what
for testator’s but this
tion 633.437 tells us to would re- do.
verse. Appellee, MIZER,
Lucille
v.
STATE CASUALTY AUTOMOBILE AND UNDERWRITERS, Corporation,Appellant.
No. 54480.
Supreme Court of Iowa.
Feb. Whitfield, Timothy Mus- Walker J. Moines, Kelly Selvy, Eddy, Des
grave, & appellant.