Rowley v. Grand Lodge of Iowa of Ancient, Free & Accepted Masons

WOOD (Parker), J.

Herman L. Rowley died on February 19, 1951. His holographic will was admitted to probate on March 26, 1951. On December 21, 1951, petitioners herein, who were not named as beneficiaries in the will, filed a petition for a decree determining heirship, and they alleged that they were first cousins of decedent and entitled to all his estate.

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Under the decree, it was determined that the devisees and legatees named in the will were entitled to distribution of the estate in the respective portions designated for each of them in the will. Petitioners appeal from the decree.

The record on appeal consists of the clerk’s transcript, which includes the petition, statements of claims of beneficiaries under the will in answer to the petition, findings of fact and conclusions of law, and the decree.

The will may be summarized generally by stating that it provided that in the event the wife of the testator survived him all his property was to. be held in trust for her, and at her death the trust property was to be distributed to the several legatees named in the will.

[573]

Decedent’s wife, Myrtie Rowley, died on October 31, 1950 (approximately three and one-half months before the death of decedent).

Appellants contend that since the wife did not survive the testator the will was not effective to dispose of any of his estate, and he died intestate.

The will, made on May 1, 1950, was in words and figures as follows:

“Los Angeles, Cala 5/1/50

I, Herman L Rowley, being of sound and disposing mind and memory, Do hereby make publish and declair this My last Will and Tustement, hereby revolting all wills and codicils at any time executed by me.

#1

I direct that my just debts shall be paid.

#2 In event my wife Myrtie Rowley, shall survive me, then and in that event, I hereby give and bequath all my property both real and personal of any kind or nature to her. I direct that the Bank of Amer. Trust and savings Assn, of Los Angeles, Cala to act as Trustee who shall keep and manage the property, and use the income and as much of the principle as is necessary to keep her in the position in Life to which she is accustomed to, Care for her and in Case of illness to provide all she needs and desires and final internment, which is to be had in Forrest Lawn Memorial Park, Glendal in Crypt $:5185 or 5191 and No. A. 199964 which are bought and paid for in full. Regarding the farms in Iowa and personal property there, I direct Ira Johnson of Perry, Iowa as executor or in Case he is not available, I desire that Donald Johnson his son act as executor, Who shall also supervise the renting, and operation of the farms, pay the taxes and reasonable amount for repairs and upkeep, ect. and remit the proceeds to the Trustee in Cala, with true and accurate report of the proceedings, who will pay him for services and reimburse him for necessary expense, that he is put to. I also desire that in Iowa the farms be kept in tact and not desposed of until the death of my wife. At her death, I direct the Trustee to sell and convert into cash all real and personal property, making the final disbursements and Close the Estate and Close the Trust.