In Re Estate of Syverson

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Smith, J.

(dissenting) — I am unable to agree with the majority opinion. It seems either to treat the ease as triable de novo on appeal or to consider the trial court’s findings as legal conclusions upon which error may be predicated. I would affirm on the ground that the decision is based on findings of fact, supported by sufficient competent evidence, and is not reviewable.

I. It is to be observed first the case arose in probate and if it be thought the pleading by appellees presented an equitable issue, no motion to transfer was made and it was tried as a proceeding at law.

II. I have no quarrel with the

general

rules of interpretation announced by the majority and so formidably supported by citation of cases. Those rules are too well settled to require such wholesale citation. They relate to the construction of the

language

of the instrument in case of ambiguity appearing on its face, that is, to cases of patent ambiguity.

In the construction of such wills the process of applying the rules is purely legal and if the trial court does not properly act an error of law results which is clearly reviewable, whether the trial be at law or in equity. It is always the function of the court to construe ambiguous language of a written instrument.

III. The case here is of quite different character. The language of the will is clear and unambiguous. But when the circumstances are shown it becomes apparent some of testator’s words, describing certain personalty, 'Should not be literally construed.

The distinction between patent and latent ambiguity is of course recognized in our cases. See, e. g., Boehm v. Rohlfs, 224 Iowa 226, 233 , 276 N. W. 105 ; Fitzpatrick v. Fitzpatrick, 36 Iowa 674 , 14 Am. Rep. 538 ; and In re Estate of Lepley, 235 Iowa 664, 670 , 17 N. W. 2d 526, 529 . In the Lepley case we said:

“A latent ambiguity exists where the language of the instrument does not lack certainty but some extrinsic or collateral matter outside the will renders the meaning obscure and uncertain. * * * With no ambiguity apparent on the face of the will, we will give it its legal construction and this will

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control

unless the testimony

shows some latent or hidden ambiguity.” (Italics supplied.)

In Fitzpatrick v. Fitzpatrick, supra, there is a thorough discussion of the subject and review of eases to that date. The opinion then says (page 683):

“These cases, and many more that could be cited, proceed upon the doctrine that where a latent ambiguity is discovered, evidence of extrinsic

facts

may be admitted in aid of the exposition of the will; to determine whether the

words of the will,

with reference to the facts, admit of a plain application, and if not, then to determine whether the

words

can be applied in any other sense of which they are capable, so as to satisfy the intention of the testator.”

The rules of construction in this latter class of cases are just as well settled as are those labored by the majority opinion. In both the end sought is the intent of the testator. That intent, when ascertained, must control. But in case of latent ambiguity the apparently clear language of the instrument does not necessarily control.

And in cases of this kind the court determines the intent as a fact and not a law question. The supreme court of Minnesota has expressed it thus:

“Where the trial court makes .its findings and conclusions, based on extrinsic facts in addition to the will, there is apparently no reason why its findings and conclusions should not have the same weight as in any other case. In re Paulson’s Will, 127 Wis. 612 , 107 N. W. 484 , 5 L. R. A. (N. S.) 804, 7 Ann. Cas. 652. We are called upon here to review such findings and conclusions. Such findings are not to be set aside if reasonably sustained by a consideration of all the evidence. This rule applies to inferences and conclusions from undisputed facts, as well as to findings on conflicting evidence. Such inferences and conclusions are treated as findings of fact and not to be disturbed unless contrary to the inferences a reasonable mind might properly draw from the evidence. Northwestern F. & M. Ins. Co. v. Connecticut Fire Ins. Co., 105 Minn. 483 , 117 N. W. 825 ; Great Northern Ry. Co. v. City of Minneapolis, 142 Minn. 308 ,

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172 N. W. 135 . Under these rules we cannot say that the evidence is insufficient to sustain the findings and conclusions of the trial court.” In re Estate of Kelly, 177 Minn. 311, 315 , 225 N. W. 156, 157 , 67 A. L. R. 1268.

To the same effect is the language in In re Will of Mitchell, 157 Wis. 327, 330 , 147 N. W. 332 , 333:

“The trial court in determining the precise meaning intended by a testator in using a particular expression deals with matter of fact to be solved from evidentiary inferences and, in case of a result being reached consistent with correct principles of law, the rule applies on appeal that such residt will not be disturbed unless clearly wrong.

“The trial court, in this case, reached the result complained of by weighing the evidentiary inferences arising from the whole will and its characterizing circumstances according to the foregoing principles. No clear indication of error in respect thereto appears. Therefore: The judgment is affirmed.”

The doctrine is not new. The New York court said many years ago in' a will construction case:

“So, too, if a devise or bequest is equivocal either as to the subject or the object, and the meaning of the'testator cannot be ascertained by a construction of the will with the aids allowed by law, and the intent of the testator, as proved by extrinsic evidence, alone gives direction to and controls the gift, the intent may be a question of fact which this court could not review.” St. Luke’s Home for Indigent Christian Females v. An Association for the Relief of Respectable Aged Indigent Females, 52 N. Y. 191, 199 , 11 Am. Rep. 697 , 703.

IV. I am convinced by this record that Mr. Syverson, when he drew this will, had no intention of having it operate by the chance circumstances of the technical location of the property at the instant of his death. The will was drawn in 1937. He died almost nine years later. The two farms were operated (by testator and appellee) as a unit during all that time and had been so operated many years before. No one lived or had ever lived on the Sandness farm during testator’s ownership of it. Any property “located” on it was there temporarily only.

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The will gives the son Melvin the Sandness farm bnt mentions no property located on it, although he is given “four cows, one team of horses .and one set of harness”.of the property which is described as located on the home farm.

Testator apparently considered the home farm as the situs of all the personal property concerned in the joint farming operations that involved the two farms as a unit. Had he considered the Sandness farm as the- situs of any of such property he would have made some disposition of it. This he did not do even in the residuary clause. The conclusion seems inescapable that he did not consider any personal property as located on the Sandness place.

However it is not our duty to weigh the evidence, except so far as necessary to determine whether it is sufficient to support the trial court’s finding of fact. Whether we would have reached the same conclusion is wholly immaterial.

Y. Testator died September 23, 1946. The property in dispute includes oné-half interest in twenty-three acres of standing corn on the Sandness farm. It would seem it must have been a part of the real estate and should be held to have passed to Melvin under the devise to him. of the Sandness farm.

I would favor modification of the trial court’s judgment as to this item and would affirm it as so modified.

Mulroney, C. J., and Mantz, J., join in this dissent.