In Re Estate of Hoagland

203 N.W.2d 577
CourtSupreme Court of Iowa
DecidedJanuary 17, 1973
Docket55286
StatusPublished
Cited by12 cases

This text of 203 N.W.2d 577 (In Re Estate of Hoagland) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Estate of Hoagland, 203 N.W.2d 577 (iowa 1973).

Opinion

203 N.W.2d 577 (1973)

In the Matter of the ESTATE of Nora HOAGLAND, Deceased.
Gilbert S. JAMES, Executor, Appellee,
v.
Earl HOAGLAND et al., Appellees,
Robert Willis et al., Appellants.

No. 55286.

Supreme Court of Iowa.

January 17, 1973.

*578 O'Connor, Thomas, Wright, Hammer & Bertsch, Dubuque, for appellants.

James, Greer, Hoover, Nelson & Bertell, Spencer, for appellee executor.

Ronald R. Barrick, Spencer, for appellee Betty Capener.

Heard before MOORE, C. J., and LeGRAND, REES, UHLENHOPP and HARRIS, JJ.

UHLENHOPP, Justice.

In this appeal we must decide a question of abatement for payment of federal and state estate taxes and costs of administration.

Comprehension of testatrix' intent requires that most of her will be set out:

ITEM I. I first direct the payment of my just debts and expenses of my last illness and burial.
ITEM II. I direct the payment of the following enumerated specific bequests:
A. My home residence located in Ruthven, Iowa, shall go to and be the *579 property of whichever son of mine desires to use the said property as his permanent home and residence. I make this provision, knowing that my two sons will mutually determine and agree with relation to this bequest without difficulty or problem. The son not taking the home residence hereunder shall receive as a bequest a sum equal to the valuation of said home as fixed and determined by the inheritance tax appraisers.
B. I bequeath the sum of Two Thousand Dollars ($2,000.00) to my following named grandchildren: Robert Willis, Sally Schmelze, Paul Willis, Carol Willis and Jim Willis.
C. I bequeath the sum of One Thousand Dollars ($1,000.00) to the Methodist Church at Ruthven, Iowa.
D. I bequeath my electric Hammond Organ to Brenda Capener and Cynthia Capener, daughters of my granddaughter, Betty Capener.
E. It is my wish and I now direct that my personal effects, consisting of furniture, antiques, jewelry, clothing, linens and dishes be divided among my two sons and my granddaughter, Betty Capener, as fairly and equally as can be, having full confidence in the fairness of each of them. I have from time to time received gifts from my sons and my granddaughter, Betty Capener, and it is my wish that said gifts be returned to the donor wherever possible. It is my further wish that antique dealers be contacted in relation to disposition of property not divided as herein set forth and any remaining property may be sold or disposed of as they may determine.
F. I bequeath the sum of Five Thousand Dollars ($5,000.00) to my husband, Earl Hoagland, if living. I intend this bequest not to be interpreted as a lack of respect or affection for my said husband, but rather this request is made because my said husband has requested that no further bequest be made because of his own estate property. I further provide that my husband, Earl Hoagland, shall have the right and privilege to occupy one of our residences located in Ruthven, Iowa, together with furniture and fixtures as may be required, for so long as he shall live, all at his election.
G. I bequeath a sum equal to one-fourth (¼) of the rest, residue and remainder of my estate to my granddaughter, Betty Capener, my having raised the said granddaughter since she was three years of age.
ITEM III. I devise and bequeath all the rest, residue and remainder of my estate, both real and personal, of every kind and description and wherever situated, to my sons, Lyle Willis and Lester Willis, share and share alike and absolutely.

In Item IV testatrix appointed the executor of the will.

The estate is large, and estate taxes and administration costs will be substantial. The executor and devisees petitioned the trial court to determine which devises abate to pay those charges. The devisees in Item III claim that Item II-G abates to pay one-fourth and Item III abates to pay three-fourths. The devisee in Item II-G, Betty Capener, contends Item III abates to pay all of those charges.

Two basic questions are involved. What are our rules on abatement? What kind of devise is Item II-G?

I. Abatement. "Abatement" means the reduction of gifts in a will because of insufficiency of assets to pay all debts, charges, and gifts in full. In re Estate of Hartman, 233 Iowa 405, 9 N.W.2d 359. The term "charges" in Iowa "includes costs of administration, funeral expenses, cost of monument, and federal and state estate taxes." Code, 1971, § 633.3(4). "Devise" includes a gift of personal property as well as real property. § 633.3(11). "Bequest" includes devise. § 633.3(3).

*580 The devisees in Item III cite cases from other jurisdictions holding that a devise of an undivided portion of an estate must bear its proportionate share of estate taxes and administration costs. E. g., Wells v. Menn, 158 Fla. 228, 28 So.2d 881. We need not say whether we would follow such decisions if we had no statute on the subject, for we have a statute which governs abatement. In re Estate of Tedford, 258 Iowa 890, 893, 140 N.W.2d 908, 910 ("The general order for abatement for payment of debts and charges, federal and estate taxes, etc., is set out in section 436 of the Iowa Probate Code"); Zion Lutheran Church v. Executors of Lamp, 260 Iowa 363, 149 N.W.2d 137; Bergren v. Estate of Mason, 163 N.W.2d 374 (Iowa); In re Estate of Miguet, 185 N.W.2d 508 (Iowa); In re Estate of Noe, 195 N.W.2d 361 (Iowa). Our abatement statute provides in § 633.436, Code, 1971:

Except as provided in section 633.211 [not applicable], shares of the distributees shall abate, for the payment of debts and charges, federal and state estate taxes, legacies, the shares of children born or adopted after the making of a will, or the share of the surviving spouse who elects to take against the will, without any preference or priority as between real and personal property, in the following order:
1. Property not disposed of by the will;
2. Property devised to the residuary devisee, except property devised to a surviving spouse who takes under the will;
3. Property disposed of by the will, but not specifically devised and not devised to the residuary devisee, except property devised to a surviving spouse who takes under the will;
4. Property specifically devised, except property devised to a surviving spouse who takes under the will;
5. Property devised to a surviving spouse who takes under the will.
A general devise charged on any specific property or fund shall, for purposes of abatement, be deemed property specifically devised to the extent of the value of the property on which it is charged.

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