Law of Wills, 2016A

III. Antilapse statute. Then who takes at the death of Kalouse? The parties argue the question of the
application of the antilapse statute to the Article V bequest. This statute provides in section 633.273,
The Code 1977: “If a devisee die before the testator, his heirs shall inherit the property devised to
him, unless from the terms of the will, the intent is clear and explicit to the contrary.”
The application of the antilapse statute depends on whether the bequest was to a class or to
individuals. “Generally if the gift is to a class the surviving members take the whole gift, if to named
individuals there is no such right of survivorship to the other named beneficiaries but the heirs of
the deceased beneficiary take his share under the antilapse statute . . . .” Gunn v. Wagner, 242 Iowa
1001, 1010, 48 N.W. 2d 292, 297 (1951); In re Estate of Huston, 224 Iowa 420, 425, 275 N.W. 149, 151
(1937) (“It is the well-known rule of law in this and most other jurisdictions that unless a contrary
intent is indicated by a will, a devise to a class includes only such members as are living at the time of
the testator’s death, when the will takes effect.”); 1A D. McCarty, Iowa Probate s 942, at 423 (2d ed.
1964). Since Kalouse left the residue of his property to a class, the antilapse statute does not apply as
to predeceasing cousins. Thus, first cousins who died before the will was executed are not included,
nor are their heirs. Parish v. Welton; Note, 21 Drake L.Rev. at 169-70. Likewise, first cousins who died
after the will was executed and before testator died, and their heirs, are not included. Redinbaugh v.
Redinbaugh, 199 Iowa 1053, 1054, 203 N.W. 246, 246-47 (1925); Note, 21 Drake L.Rev. at 170-71.
We decline to change these rules.
The trial court correctly construed the Kalouse will. Each of the 24 first cousins alive on the date
Kalouse died and Frank Nespor receive one twenty-fifth of the residue of the estate.
Affirmed.
Nolan v. Borger, 203 N.E.2d 274 (Ohio Prob. 1963)
ZIMMERS, Judge.
This cause is before the Court upon the Petition for construction of the Will of Henry E. Borger,
deceased, by Nicholas F. Nolan, Executor of said decedent’s estate; the Answer and Cross-Petition
filed on behalf of the estate of George Reichert, deceased, and Lena Renner, defendants herein; the
Answer and Cross-Petition filed by Essie Borger, defendant; the Briefs filed by counsel on behalf of
the afore-mentioned parties and the evidence. Of the designated defendants the following are not
before the Court by process or by virtue of an appearance and are, therefore, not bound by the
judgment herein: Marie Reichert, Francis Adolph Reichert or Arthur E. Harter, Jr., Attorney in Fact
for Francis Adolph Reichert, and Rev. Urban J. Stang.
The record shows that Henry E. Borger died on September 2, 1961, and that his Last Will and
Testament was admitted to probate in this Court on September 11, 1961, at which time the
petitioner was appointed executor of said estate. Clara Herman and Adolph Reichert, devisees
named in said Will, predeceased the testator. George D. Reichert, who is named in the Will, died on
June 2, 1962, therefore surviving the testator, and his estate is represented herein by Mary Katherine
Kane and Margaret Cecelia Paszkiewicz, co-executrices thereof. Items IV, V, VI, VIII and IX of the
Will of Henry E. Borger, deceased, are as follows:
628