257 Iowa 938, 135 N.W.2d 607 (1965)
Bankers Trust Company of Des Moines, as executor of the estate of Alden B. Howland, deceased, brought this action for declaratory judgment construing his will and determining the rights of his widow, Bertha, and numerous heirs in the estate.1 Decedent, a prominent Des Moines lawyer, died July 24, 1962.2 His will, made October 3, 1961, was admitted to probate six weeks later.3 Following trial to the court as in equity, Bertha appealed and the heirs cross-appealed from the decree.4
Decedent and Bertha were married in 1939 but did not live together until 1943.5 They had no children.6 Decedent was devoted to his widowed mother and unmarried sister Mary, with whom he lived until 1943.7 The sister Mary, named in the will, predeceased testator on February 20, 1962.8 He acquired under her will her undivided half interest in the Clark Street property.9 He previously owned the remaining interest therein.10
Item II of the will gave the residence property, household furniture, and one-half of personal property to Bertha if she survived.11 Item III gave the remaining one-half of personal property plus the undivided one-half interest in the Clark Street residence to Mary if she survived.12 Item IV provided that the provision for Bertha was in lieu of all other claims and any widow's allowance.13 Bertha applied for, the court granted, and she accepted a widow's allowance of $12,000.14 There were three policies of insurance on testator's life, two payable to him and the other to his executor, and the insurers paid the executor nearly $20,000 as proceeds of the policies.15
The extrinsic evidence showed that none of decedent's heirs lived in Des Moines during the last 50 years; most of them lived in the East.16 Decedent's father died when he was ten and his mother, with decedent, Mary and a daughter who died in 1937, moved into the home of the mother's sister and her husband in Des Moines.17 Defendant Ward S. Allen, Jr. claims half the intestate property as decedent's only heir by reason of descent from decedent's maternal grandparents.18 Defendants Almy S. Howland et al. claim one fourth as heirs by reason of descent from two of the four paternal great-grandparents.19
The trial court ruled on the disposition of property, the widow's rights, insurance proceeds, and reserved determination of who the heirs are except for stipulated facts regarding defendants Ward S. Allen and Almy S. Howland et al.20 The court ordered the executor to pay costs and fees in specific ways and to discontinue further search for heirs.21
Whether the property bequeathed to the testator's predeceased sister passed to the surviving widow or descended as intestate property to the heirs?22
Where the language of a will is plain and unambiguous its meaning must be determined from the language used without resort to extrinsic circumstances.23 The testator’s intention must be determined from what he said, not from what it may be supposed he intended to say or should have said.24 The bequest to Mary in Item III is conditioned on her surviving the testator.25 There being no residuary clause and no provision for the disposition of the bequest to Mary if she predecease her brother, the property bequeathed in Item III descended as intestate property to his heirs.26
No. Bankers Trust Company of Des Moines, as executor of the estate of Alden B. Howland, deceased, brought this action for declaratory judgment construing his will and determining the rights of his widow, Bertha, and numerous heirs in the estate.27
Decedent, a prominent Des Moines lawyer, died July 24, 1962. His will, made October 3, 1961, was admitted to probate six weeks later. Following trial to the court as in equity, Bertha appealed and the heirs cross-appealed from the decree.
Decedent and Bertha were married in 1939 but did not live together until 1943. They had no children. Decedent was devoted to his widowed mother and unmarried sister Mary, with whom he lived until 1943. The sister Mary, named in the will, predeceased testator on February 20, 1962. He acquired under her will her undivided half interest in the Clark Street property. He previously owned the remaining interest therein.
Item II of the will gave the residence property, household furniture, and one-half of personal property to Bertha if she survived. Item III gave the remaining one-half of personal property plus the undivided one-half interest in the Clark Street residence to Mary if she survived. The extrinsic evidence offered by Bertha was designed to show it is unlikely decedent intended to leave any of his property to any of those claiming as heirs.28 But this does not indicate an ambiguity in the will.29 The will contains no residuary bequest of the property bequeathed to Mary.30 The bequest to Mary lapsed and descended as intestate property to the heirs named in the established facts.31
The property bequeathed to the testator's predeceased sister descended as intestate property to the heirs.32
Whether the widow could take the bequest under the will in addition to a statutory widow's allowance?33
A widow's allowance is an expense of administration, not part of the estate to be distributed.34 Public policy forbids interference with the power of the court to grant an allowance for the protection of decedent's widow and children during the period of administration.35 A testator cannot require his widow to elect between benefits under his will and the statutory allowance during the period of administration.36
Yes. Bertha applied for, the court granted, and she accepted a widow's allowance of $12,000. Item IV of the will stated that the provision in Item II for Bertha shall be in lieu of all other claims she may be entitled to make and also in lieu of any widow's allowance pending administration of my estate.37
The trial court upheld Bertha’s right to the widow's allowance and also to take under the will on the ground testator’s attempt in Item IV to require an election between these two rights was contrary to public policy and void.38 Applying the rule to the established facts, the allowance is an expense of administration payment of which testator could not defeat by his will.39 So Bertha is entitled to take under the will as well as the amount paid her.40
The widow could take the bequest under the will in addition to a statutory widow's allowance.41
Whether the proceeds of life insurance policies passed to the widow independently of the will?42
A policy of insurance on the life of an individual, in the absence of an agreement or assignment to the contrary, shall inure to the separate use of the husband or wife and children of said individual, independently of his creditors.43 When insurance is payable to the estate the insured may make specific disposition of the proceeds by provision to that effect in his last will and testament.44 But in order that testator may make disposition of the insurance proceeds other than already provided by the statute, there must be an agreement or assignment to the contrary.45
Yes. There were three policies of insurance on testator's life, two payable to him and the other to his executor, and the insurers paid the executor nearly $20,000 as proceeds of the policies. The will does not mention the life insurance.46 There being no agreement or assignment to the contrary it inured to the separate use of Bertha under the statute.47
The trial court held Bertha was entitled to these proceeds in addition to the bequest under Item II on the theory the executor held them in trust for her.48 Applying the rule to the established facts confirms the proceeds passed to the widow independently of the will.49
The proceeds of life insurance policies passed to the widow independently of the will.50
Whether the executor should discontinue searching for additional heirs and how costs and attorney fees should be allocated?51
The court may direct the executor to discontinue further search for heirs.52 This is appropriate when further exhaustive search would unduly delay the orderly administration of the estate and entail large expense which might well exhaust or exceed the fund to be distributed to them.53 The fees to be allowed appointed attorneys should be charged to the parties they represent, not against all the property passing as intestate.54 The costs in the trial court should be taxed as part of the costs of administration in the estate.55
Yes. The trial court ruled determination of who the heirs may be could best be made in another action and ordered the executor to discontinue further search for heirs.56 The executor and its attorneys have made considerable search at a good deal of expense.57 It is apparent their investigation has satisfied them that defendant Ward S. Allen, Jr. is an heir entitled to one half the estate passing as intestate property and defendants Almy S. Howland et al. are heirs entitled to one fourth such estate.58
The court ordered the executor to pay the costs of this action, half thereof to be treated as a cost of administration, the other half charged against the intestate property passing to the heirs.59 The fees to be allowed appointed attorneys were also to be paid by the executor and charged against such intestate property.60 Applying the rule to the established facts, the direction to discontinue search is approved under the circumstances.61 But the order requiring payment to the clerk is premature.62 Fees should be charged to the parties represented while costs are taxed as administration expenses.63
The executor should discontinue searching for additional heirs, fees should be charged to represented parties, and costs should be taxed as administration expenses, with payment to the clerk held premature.64