187 Iowa 23 | Iowa | 1919
The paper filed and admitted to probate as the will of the deceased is exceedingly brief, and in the words following:
“Des Moines, la., Sept. 2-15.
“In case of any serious accident, after my just debts are paid, I direct that my aunt Miss Mary E. Clark, take entire charge of my estate for disposal as she sees fit.
“J. Clark Tinsley.
“W. H. Barnard, Des Moines, Iowa.
“J. H. Fowler, Des Moines, Iowa.”
The deceased appears to have left neither wife nor lineal descendants, and the contestants are surviving collateral heirs, of various degrees of relationship.
The objections filed to the admission of the will are as follows :
First. The instrument purporting to be the last will and testament of J. Clark Tinsley is not testamentary in character. It leaves nothing to be done after the death of the testator.
Second. Said instrument makes no provision for, or mention of, a disposition of property after, or in the event of, death of the purported testator.
Third. The instrument is directory only as to the management of the business of the decedent during his lifetime, and then only in case of any serious accident, whereby he is incapacitated. Said instrument on its face purports to appoint an agent, or attorney in fact, and is not testamentary in character.
Fourth. The said decedent met with no serious accident during his lifetime, and died a natural death. Said instrument cannot operate as a testamentary disposition of his estate, made in contemplation of death.
Fifth. Said instrument, which is alleged to be a will, rests upon a contingency, or the happening of an event, and refers to some future contingent event which did not take place; and said instrument is, therefore, ineffective as a will.
Sixth. Said instrument does not make any devise or distribution of property, nor did it vest the same in any person; it leaves the disposal of property to another person. The decedent did not, by said instrument, and could not, delegate to an agent the power to make a will for him.
Eighth. If the said instrument created Miss Mary E. Clark a trustee, for the purpose of attending to any business and making a disposal of the property of J. Clark Tinsley, she having departed this life prior to the time of his death, the trust fails, and the instrument is void.
Ninth. If the said instrument created a life estate only in Miss Mary E. Clark, she having departed this life prior to the decedent, said devise has faded, and the property is subject to distribution among the heirs at law of said decedent.
By a later amendment to these objections, it was further alleged, in substance, that, even if construed to be a will, its utmost effect was to provide a power to be exercised by the said Mary E. Clark, or a life estate in her with power attached; and that, the said devisee having died in the lifetime of the testator, said provision never became effective.
The evidence produced on the trial tends fairly to show that Tinsley was a resident of Des Moines, where he was engaged in business. At the date of the instrument in controversy, he was contemplating a more or less extended visit to California. With the paper prepared by himself in its present form ready for execution, he called at the office of the Security Loan and Investment Company, with which he was accustomed to do business, and requested the president and vice-president of that institution to witness its execution as his will. They complied with his request, and attached their names to it as witnesses. Just what disposition Tinsley made of the paper at that time is not expressly shown; but we think it is inferable that he delivered it to the beneficiary named therein, by whom it was retained until her death, in the year 1917, when it passed
For a reversal of the order admitting the will to probate, appellants contend:
No question is raised against the sufficiency of the evidence of due execution and publication of this instrument; and, with the concession of counsel above cited, together with their further statement that the trial court “did not attempt to pass on anything except the sole question whether the instrument was sufficient in form to be admitted to probate as a will” (a sufficiency which, as we have seen, is conceded), there seems-to be nothing left on which to base the first assignment of error. Even if it should be held (a proposition we are not here called upon to decide) that, under some circumstances, the court might, in its discretion, have entered upon an inquiry whether there was anything upon which the alleged will could operate, if probated, there is certainly no rule or precedent in this jurisdiction for holding it reversible error for the court,
That the instrument may properly be treated as' testamentary in character is conceded by counsel in the first division of their argument; and, while it is perhaps their privilege to assert inconsistent grounds of contest, they can hardly hope to convince the court that they are right upon both propositions. Any writing by which a person undertakes to make disposition of his property or estate, to take effect after his death, is testamentary in character; and, if duly signed, witnessed, and published, it is entitled to admission to probate. It makes little difference whether the language employed be that of a lawyer, skilled in all technicalities of the law of wills, or is prepared by the most ignorant and unpracticed scrivener, if, when candidly read and fairly construed, it reveals the purpose of the testator to make a disposition of his estate, or some part of it, which shall become effective and irrevocable at his death. It is not necessary that there shall be express technical words of devise or bequest, or an express declaration that its provisions shall take effect only at his death, if, when read as a whole, in the light of the circumstances under which the instrument was made, such is the reasonable meaning to be extracted from its terms. A very large proportion of wills presented to the courts for probate is of very informal character, and not a few have been prepared by the testa
If the sole evidence of a transaction between A and B is that A delivers to B a sum of money or other item of personalty, saying to him, “Here, take this and manage and dispose of it as you please,” no lawyer will contend that this alone establishes the creation of a trust. On the contrary, he would say that this fact, without other evidence to modify its effect, establishes a valid gift, for which the receiver is under no obligation, at law or in equity, to account to the giver or to his representatives. If such would
In Rona v. Meier, 47 Iowa 607, this court said:
“It is fully settled by authority that, if the first taker has the power, by the terms of the will, to dispose of the property, he must be considered the absolute owner.”
The same rule was reaffirmed in Law v. Douglass, 107 Iowa 606, 607, and on frequent occasions since that time. Unrestricted power of disposal is an attribute of absolute ownership. Quite in point, also, is Cheney v. Plumb, 79 Wis. 602 (48 N. W. 668), where the instrument was, in form, as follows:
“When I have done with my property, I want John It. Cheney and his wife to pay all my debts and collect my dues and dispose of my things as they think best, only I want Sarah A. Williams to have my silver spoons * * * [and after several legacies] and the remainder to keep and-dispose of as they think best.”
This was held sufficient to vest the property absolutely in the persons named. See, also, Benz v. Fabian, 54 N. J. Eq. 615 (35 Atl. 760). And that the trial court was justified in holding the instrument testamentary in form, and not a mere trust or power, expiring with the death of Mary E. Clark, there is no room to doubt.
“I am about to make a trip to California, and if, by reason of any accident, I do not live to return to my home, then and in that event, I dispose of my estate as follows:” etc.
But to do this, the court must make a will for the testator, expressing an intent which is not to be found in the writing which he executed. Proof of extrinsic circumstances may sometimes be admitted, to clear up any ambiguity in the will, or to identify the subject-matter of a devise or bequest, or the person of a beneficiary;- but it cannot be permitted to show that the testator intended anything other than or different from that which is to be found in or implied from the instrument itself. If the will be unconditional upon its face, it cannot be adjudged to be conditional or contingent upon the strength of parol testimony.
It may well be that the contemplation of a long journey and its possible dangers and exposures suggested to the mind of the deceased the wisdom of providing for the succession to his estate in the event of his death, and that, acting upon this thought, he prepared the paper in question. This would indicate no more than that the circumstances mentioned were the occasion for his act, and not at all that his death while on that trip was a contingency without which the will would not become operative.
In Forquer’s Estate, decided by the Pennsylvania court, 216 Pa. 331 (66 Atl. 92), is found a case in principle much like the one at bar. The court there goes into an extensive citation and review of the authorities, and from these deduces the rule that:
In that case, to which this rule was applied, the will expressly stated that he was about starting on a trip to Montana, and, knowing the uncertainty and risk of the journey, he therefore executed the will which later became the subject of litigation.
In the case before us, the fact that the deceased was about starting on a journey is not mentioned in the instrument, and the fact comes into the record only by the testimony of witnesses examined in the proceedings for its probate.
We are satisfied that upon no sound rule of law can the will in this case be refused probate because of any condition or contingency attached thereto.
We are satisfied that the record discloses no reversible error, and the judgment of the district court is — Affirmed.