Beckmann v. Densmore

CARTER, Justice. This is a declaratory judgment action in probate relating to the administration of the estate of Lou D. Carpenter of Monticello, Iowa. Such actions are authorized by Iowa Code section 633.11 (1991). At issue, is the continuing validity, if any, of an option to buy stock in the Monticello State Bank that was conferred by decedent’s will on designated officers of that bank and the profit-sharing trust for the bank’s employees. After the making of the will, the decedent’s stock that was the subject of the option was acquired by a bank holding company in exchange for stock of the holding company and cash. The decedent was a ward under conservatorship at the time her Monticello State Bank shares were tendered to the holding company. The — 498 — holding company stock and cash that constituted the consideration for the decedent’s disposal of her Monticello State Bank stock has been segregated by order of the probate court so as to permit tracing if necessary to effectuate decedent’s testamentary intention. This procedure is authorized by Iowa Code section 633.644. Because the designated executor under decedent’s will has a personal interest in this litigation, the present declaratory judgment action was brought by a temporary executor appointed by the probate court. The action seeks a declaration concerning whether the holding company shares and cash that were exchanged for the bank stock to which the options applied may, by substitution, become the subject of the options. The district court’s declaratory judgment answered this question in the affirmative. Some of the residuary beneficiaries have appealed from that judgment. After reviewing the record and considering the arguments presented, we answer that question in the negative and reverse the judgment of the district court. The decedent, Lou D. Carpenter, was the surviving spouse of Halstead Carpenter, who for many years was the chief executive officer of the Monticello State Bank. Halstead Carpenter died in 1950. Following Hal-stead’s death, James Maurice, who succeeded Halstead as chief executive officer of the bank, looked after the financial affairs of Lou D. Carpenter. He did an admirable job in that regard. Mrs. Carpenter’s net worth, which was approximately $200,000 when her husband died in 1950, had increased to approximately $6 million by the time of her death on March 5, 1991. Mr. Maurice also did an excellent job of managing the affairs of the Monticello State Bank, whose assets increased from $14 million to $190 million during the approximately forty years he was its chief executive officer. Lou D. Carpenter executed a will in 1965. This was replaced by another will executed in 1975. Both wills were drafted by James Maurice. The two wills were very similar in most respects. Under the 1965 will, cash bequests were made to the Congregational Church, John McDonald Hospital, Monticello Municipal Swimming Pool, Jones County Fair Association, and Public Library of Monticello. Five persons, who are nieces and nephews of Mrs. Carpenter and who are collectively referred to in this litigation as “the Densmores,” received cash bequests. A cash bequest was made to a housekeeper of Mrs. Carpenter and a bequest in trust was made to the brother of Mrs. Carpenter’s deceased husband. The five Densmores were made residuary beneficiaries under the will along with five other persons who were nieces and nephews of Mrs. Carpenter and who are referred to in this litigation as “the Ellises.” Following the residuary clause in the 1965 will, it was provided that all bequests were to be paid as soon as possible and were to be tax free. Provision was then made for liquidation of Mrs. Carpenter’s assets. It was provided for bequests to reduce proportionately if the assets were not sufficient to pay them in full. Finally, this clause provided: It is my wish and desire that the active officers of the Monticello State Bank be authorized to purchase from my estate any portion of the Monticello State Bank stock which I may die seized of, the purchase price of the stock to be determined by disinterested appraisers appointed by the court. All officers wishing to purchase stock shall have equal rights. In her 1975 will, Mrs. Carpenter eliminated the bequests to her housekeeper, who was at that time deceased, and to her husband’s brother, who also was deceased. The cash bequests to the Densmore nieces and nephews were increased, and in addition, these five persons were each bequeathed 160 shares of Monticello State Bank stock and 160 shares of MSB Corporation stock, a corporation that owned a bank in Central City, Iowa. Cash bequests to the same five charities were included in the 1975 will, and the amount of those bequests was increased. The residuary legatees under the 1975 will were the same as those persons designated in the 1965 will. In the 1975 will, following the residuary clause, provision was made for liquidation of Mrs. Carpenter’s assets. In regard thereto, it was stated: — 499 — It is my wish and desire and I direct that the balance of my stock in the Monti-eello State Bank and the MSB Corporation which I die seized of shall first be offered to the following: James A. Maurice, twenty percent (20%), Louis L. Morf, twenty percent (20%), other active officers of the Monticello State Bank, twenty percent (20%), and the Monticello State Bank Profit Sharing Trust, forty percent (40%). The Monticello State Bank stock be sold to the above at two-thirds (⅜) of book value as of December 31st, prior to my death. The book value to be the total of the banks Capital, Surplus, and Undivided Profits divided by the number of outstanding shares of the bank’s common stock. The MSB Corporation stock be sold to the above at my original cost per share which is $15.00 as of this date plus accrued interest at nine percent (9%) compounded annually from January 1, 1964 to the date of my death. At this time, Mrs. Carpenter owned 1362 shares of stock in the Monticello State Bank. Eight hundred of these shares were bequeathed to the Densmores. Consequently, 562 shares were made the subject of these options. The MSB Corporation stock was among Mrs. Carpenter’s assets at the time of her death. There is no issue in this litigation concerning that portion of the clause last quoted affecting the sale of that stock, and the district court correctly found that those options could be exercised. The shares of Monticello State Bank stock owned by Mrs. Carpenter at the time she executed the 1975 will were not in existence at the time of her death. The effect of the option as to those shares is in dispute. In addition, the demise of the Monticello State Bank as a separate entity renders it impossible to compute an option price based on two-thirds of the bank’s book value on December 31 prior to Mrs. Carpenter’s death. This is not a true ademption ease involving bequeathed property disposed of during a testator’s lifetime. It is, rather, a ease involving an option granted by will to buy specifically described property owned by the testator at the time the will was executed. Because that property was no longer owned by the testator when she died, a question has arisen concerning whether the option legatees acquired any viable claim against the testator’s estate. Because the case was tried by equitable proceedings, our review is de novo. Iowa R.App.P. 4. This court has previously dealt with the problem of impossibility of literal compliance with an option clause in a will because of events that occurred after execution of the will. In In re Estate of Beaver, 206 N.W.2d 692 (Iowa 1973), the will provided that a beneficiary was to have an option to purchase certain property and that the option was to be exercised before that beneficiary attained thirty years of of age. As events transpired, however, this beneficiary was more than thirty years of age by the time the testator died. We stated that: In some instances ... impossibility renders a gift void, while in others literal compliance is excused or, more accurately, the clause is held not to be a condition to the gift as events come to pass. Id. at 695. We concluded on the facts presented in Beaver that the beneficiary should be allowed to exercise the option notwithstanding her inability to do so before she attained thirty years of age. We based this result on our finding that literal compliance with this age requirement was not necessary to carry out the intention of the testator. In the present case, Lou D. Carpenter did not voluntarily relinquish her stock in the Monticello State Bank. This was done by her conservator under direction of the probate court. The probate court conditioned the conservator’s authority to exchange the shares upon a requirement that the shares be segregated in the accounts of the conservatorship so that the proceeds could be traced. That action appears to have been an attempt by that court to preserve the ward’s testamentary intent concerning the Monticello State Bank shares bequeathed to the Densmores. It may also have been a precautionary effort to allow the proceeds of the tendered shares that were subject to the option to be traced should that become necessary. The probate court had the power to do this under section 633.644 if that action — 500 — would serve to preserve testamentary intent. There is no dispute in the present case concerning substitution of the proceeds of the tender for those bank shares bequeathed to the Densmores. There is, however, a dispute as to whether the proceeds of the tender may be substituted for the tendered bank shares in carrying out the option granted bank officers. After fully reflecting on the circumstances surrounding these options, as shown by the evidence, we must conclude that giving them continuing viability would not serve to foster Lou D. Carpenter’s testamentary intent. Those persons who were granted an option to buy Monticello State Bank stock under decedent’s will argue that those options were intended to confer a benefit on bank officers and profit sharing employees. From this premise, they argue that the district court acted properly to preserve the testator’s intent by segregating and holding intact the consideration received for the shares that were the subject of the option. The final step in that effort, they argue, is to permit those option beneficiaries to acquire this consideration by way of substitution for the Monticello State Bank shares described in the option. Evidence was presented that Mrs. Carpenter thought highly of Mr. Maurice, Mr. Morf, and officers and employees of the bank in general. She frequently attended bank social functions with those persons. Mr. Maurice, in addition to providing financial advice, looked after Mrs. Carpenter’s living concerns and medical needs. The goodwill that this relationship naturally engendered would support a finding that Mrs. Carpenter conferred the stock options on bank officers and the employee benefit trust because she believed that the persons affected would be appreciative of the opportunity to purchase closely held stock in the financial institution by which they were employed. She had the opportunity to grant them that benefit as part of the liquidation of her assets. We believe, however, that the intended benefit to bank officers and profit sharing employees from the viewpoint of Mrs. Carpenter was the opportunity on their part to become more closely linked to the banking organization to which she was affectionately attached, and to which she hoped they were also affectionately attached. Appellees argue that Mrs. Carpenter was sufficiently sophisticated in business matters to have realized that the shares to which the options related might appreciate in value after the execution of her will. Assuming that this is true, it does not aid their case. If the shares described in the will were still in existence and had appreciated in value, then appellees could argue successfully that they could nonetheless acquire them for the option price. But, because those shares are not in existence, the options must fail unless both the shares sought to be substituted and the price sought to be substituted are consistent with Mrs. Carpenter’s purposes in granting the options. The evidence does not suggest that this is true as to either the stock or the price. It appears to have been her purpose to foster esprit de corps at the Monticello State Bank while simultaneously generating a source of cash for the residuary beneficiaries. The first part of this dual purpose cannot be realized by a judicially decreed substitution of shares of the holding company as the subject of the options. That is because the relationship of the bank officers and profit sharing employees to that entity is entirely different. The second part of Mrs. Carpenter’s dual purpose is no longer valid as the holding company shares can be freely bought or sold on the NASDAQ Stock Exchange.1 Appellees suggest in their argument to this court, although not very forcefully, that it was Mrs. Carpenter’s intent to allow those persons given the options to buy the bank stock at a discounted price. We are unable to find any support for this contention in the record. To sustain this claim, it would be absolutely essential to show that the formula price contained in the option clause was calculated to be a price discounted below the — 501 — stock’s market value. There was no showing made that at any time in the bank’s history the market price of the stock exceeded two-thirds of book value. Instead, the evidence reveals that this stock was consistently traded at approximately two-thirds of book value. Mrs. Carpenter’s 1965 will provided that the option price for the bank stock was to be fixed at market value by a disinterested appraiser. Between the time that will was prepared and the 1975 will was prepared, Mrs. Carpenter’s brother-in-law died owning 400 shares of Montieello State Bank stock. A formal appraisal of those shares was conducted at that time by an investment banking firm appointed by the probate court pursuant to directions in his will. The resulting appraisal fixed the market value of these shares at two-thirds of book value. It is, of course, impossible to be absolutely certain as to the reasons that prompted Mrs. Carpenter to change the method for calculating the option price from appraisal, as provided in the 1965 will, to two-thirds of book value, as specified in the 1975 will. We find, however, that it is more likely than not that this change was the result of two circumstances. These were (1) a belief that the data revealed in the appraisal conducted in the estate of Mrs. Carpenter’s brother-in-law was not likely to change during her lifetime, and (2) the fact that the financial statements prepared annually for Mrs. Carpenter consistently showed the value of the Montieello State Bank stock to be two-thirds of its book value. The testimony of Mr. Maurice, who was both the preparer of Mrs. Carpenter’s will and, as an option holder, an interested party in the litigation, touches on this point. In commenting on the changes from the 1965 will with respect to the options to purchase Montieello State Bank stock, he testified: Q. Did Mrs. Carpenter orally or in writing state to you any other changes she wanted in her 1975 Will different from her 1965 Will? A. It was orally she was wanting the Densmores to get some stock, open stock, of the Montieello State Bank. Q. She wanted the five Densmores to each receive 160 shares of Montieello State Bank stock? A. Yes. That’s what she finally decided on. Q. Did she orally or in writing tell you any other changes she wanted? A. Oh, she wanted — of course, that came to— There was still some more stocks left, and so then she told me about that she would like to see the employees rewarded. Q. Rewarded in what sense? A. That they could have an option to buy some stock. Q. Did she request any other changes? A. Not that I can think of right now. Q. Did she specifically request a change to the appraisal method of the Montieello State Bank stock under the option? A. Well, that was part of the discussions and I — as I’ve stated before, I don’t remember exactly what all the discussion was. Q. Did you in fact suggest the language “two-thirds of book value as of December 81st closest to her death”? A. I don’t know who suggested that. Her statements, you know, that we gave her was always two-thirds. I don’t know whether she thought that would be a good figure or not. [[Image here]] Q. Did you in fact suggest to Mrs. Carpenter that she put into her 1975 Will the phrase that “The Montieello State Bank stock be sold to the above at two-thirds of book value as of December 31st, prior to my death”? A. I don’t know. We talked about a lot of things and that’s what we ended up with. Q. Did you consider the language in the 1975 Will that I just read to you a change in method of valuation from the 1965 Wül? A. I don’t know. Q. Mr. Maurice, you had used similar language in the 1975 Will and the 1965 Will. Why didn’t you use the same appraisal language in the 1975 Will for bank stock that you used in the 1965 Will? A. Well, we discussed what to use and this is what we came up with. Q. Did you relate to Mrs. Carpenter that that might result in the sale of bank — 502 — stock for less than the market value? A. No. Nothing in Mr. Maurice’s testimony or any of the other evidence presented suggests that Mrs. Carpenter would have believed at the time her 1975 will was executed that a price of two-thirds of book value represented a discounted price below market value.2 Instead it would appear that, if she was aware of the history of this stock, she would have believed that two-thirds of book value was the approximate market value of the shares. It is significant in interpreting this language in the will that it is placed in the clause that follows the residuary clause and deals with liquidation of the assets for purposes of paying cash to residuary beneficiaries. Concerning the general plan of asset disposition, this clause provides: “It is my wish that the conversion of my estate into cash be as favorable as possible.” Under the interpretation adopted by the district court, the shares of the holding company that acquired the Monticello State Bank stock and the cash boot that accompanied the exchange of stock would be disposed of by the estate for more than $600,000 below market value. We are convinced that this result represents an unwarranted enlargement of the option bequest beyond the terms of Mrs. Carpenter’s will. Part of this distortion results from the district court’s conclusion that the option price be set at two-thirds of the book value of the shares of the holding company that acquired the Monticello State Bank. There appears to be no relationship between the assets and liabilities of the holding company and the assets and liabilities of the Monticello State Bank. If a discounted price for the stock had been intended, a better approach would have been to quantify that discount as a percentage of market value and apply that percentage to the market value of the substituted shares and accompanying cash boot. Based on our view of the evidence, however, that percentage of market value would be 100%. There is no purpose in a judicial reformation of the option simply to allow the appellees to purchase stock from the estate at market value when the same stock can be purchased for market value on the NASDAQ Stock Exchange. We have considered all arguments presented and conclude that the options to purchase shares of the Monticello State Bank fail for lack of purpose as the result of the estate no longer owning the subject matter to which the options relate. That portion of the district court’s judgment upholding those options is reversed. The case is remanded to that court for a decree and order declaring the options to be incapable of enforcement. REVERSED AND REMANDED. All Justices concur except SNELL, J., and McGIVERIN, C.J., and LARSON and AN-DREASEN, JJ., who dissent. Footnotes [1] With an average of $2,705,672 shares outstanding during 1990, total NASDAQ stock market volume for shares of this holding company was 144,558 shares. The average daily volume was 571 shares. Volume in the two months following the December 31, 1990 valuation date was 21,-584 shares in January and 10,132 shares in February. [2] Mr. Maurice's testimony that one reason Mrs. Carpenter changed her will was to reward bank employees is not necessarily inconsistent with our conclusions as to her intent. The changes made in the option clause when the 1975 will was drafted did provide that a broader group of bank employees would receive the intended benefits of these options than was the case under the 1965 will.