BARD GILTNER , Plaintiff - Appell ee , vs. ESTATE OF MARJORIE E. GILTNER, BERT GILTNER, Executor , Defendant - Appell ant .
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IN THE COURT OF APPEALS OF IOWA
No. 8-537 / 07-2117
Filed December 31, 2008
BARD GILTNER,
Plaintiff-Appellee,
vs.
ESTATE OF MARJORIE E. GILTNER,
BERT GILTNER, Executor,
Defendant-Appellant.
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Appeal from the Iowa District Court for Wapello County, James Q.
Blomgren, Judge.
Bert Giltner, as executor of the Estate of Marjorie Giltner, appeals from the
trial court’s ruling dismissing the executor’s claim for rent. AFFIRMED.
Heather M. Simplot and John R. Webber III of Harrison, Moreland &
Webber, P.C., Ottumwa, for appellant.
Craig R. Foss and Gary L. Cameron of Foss, Kuiken, Gookin & Cochran,
P.C., Fairfield, for appellee.
Considered by Sackett, C.J., and Huitink and Mahan, JJ.
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HUITINK, J.
Bert Giltner, as executor of the Estate of Marjorie Giltner, appeals from the
trial court’s ruling dismissing the executor’s claim for cash rent from a holdover
tenant in possession of the decedent’s farmland.
I. Background Facts and Proceedings.
Bert Giltner, as executor of the Estate of Marjorie Giltner, sued his brother,
Bard Giltner, to recover three years’ cash rent on sixty-five acres of farmland
(farm) Bard was renting from Marjorie when she died in August 2002. Under the
terms of Bard’s lease with Marjorie, the annual cash rent was equal to the
amount of the real estate taxes on the farm. Bard denied liability for cash rent in
excess of the real estate taxes he paid on the farm, citing the absence of timely
notice terminating his farm tenancy and his resulting right as a holdover tenant to
continue renting the farm on the same terms and conditions as he did before
Marjorie died. The executor claimed Bard’s tenancy terminated upon Marjorie’s
death and the statutory provisions requiring timely notice of termination of a farm
tenancy were inapplicable under the circumstances of this case.
The executor’s claim for rent was submitted on stipulated facts to the trial
court sitting in probate.
The parties’ stipulation indicates Bard and Bert
mistakenly assumed Marjorie had given all but a life estate in the farm to Bard
before she died.
Bard accordingly retained possession of the farm, made
improvements, and thereafter paid the annual real estate taxes. When it was
subsequently discovered Marjorie still owned the farm when she died, her will
was admitted to probate for administration. Bard and Bert were appointed coexecutors. Marjorie’s will left all of her real property not otherwise disposed of to
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Bard and Bert in equal shares. Bard purchased the farm from the estate in May
2006.
The trial court determined the statutory provisions requiring notice of
termination of a farm tenancy applied and neither the executor’s equitable
estoppel nor unjust enrichment theories precluded their application in this case.
In the absence of timely notice of termination, the trial court determined Bard, as
a holdover tenant, was entitled to continue renting the farm on the same terms
and conditions as he did prior to Marjorie’s death. Because Bard paid the real
estate taxes for the crop years at issue, the court dismissed the executor’s claim
for additional cash rent.
The executor did not file any posttrial motions
requesting the court to address the alternative theories of Bard’s liability for
additional rent raised either in the pleadings or at trial.
The executor appealed. This matter was remanded to the district court for
a determination of the nature and extent of the decedent’s interest in the real
property at issue. On remand, the court ruled that at the time of her death,
Marjorie Giltner was the fee simple owner of the farm, which was subject to an
oral lease with her son Bard Giltner.
II. Standard of Review.
Probate matters are heard in equity, and review of those decisions is de
novo. Iowa Code § 633.33 (2007); Iowa R. of App. P. 6.4. As the reviewing
court in this equity case,
it is our responsibility to review the facts as well as the law and
determine from the credible evidence rights anew on those
propositions properly presented, provided issue has been raised
and error, if any, preserved in the trial proceedings. While weight
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will be given to findings of the trial court, this court will not abdicate
its function as triers de novo on appeal.
Wilden Clinic, Inc. v. City of Des Moines, 229 N.W.2d 286, 289 (Iowa 1975).
III. Discussion.
On appeal the executor contends the trial court erred in ruling that Bard
was not obligated to pay rent for the farm. We disagree.
Marjorie Giltner, at the time of her death, was the fee simple owner of the
farm, which was subject to an oral lease with her son, Bard Giltner. Iowa Code
section 633.351 provides:
If there is no distributee of the real estate present and competent to
take possession, or if there is a lease of such real estate
outstanding, or if the distributees present and competent consent
thereto, the personal representative shall take possession of such
real estate, except the homestead and other property exempt to the
surviving spouse. Every personal representative shall take
possession of all the personal property of the decedent, except the
property exempt to the surviving spouse. The personal
representative may maintain an action for the possession of such
real and personal property or to determine the title to any property
of the decedent.
(Emphasis added.)
Section 633.351 was addressed in the case of In re
Franzkowiak's Estate, 290 N.W.2d 1, 5 (Iowa 1980):
Frank occupied the farm under lease; hence the executor would
step into the shoes of the decedent-lessor. Colthurst v. Colthurst,
265 N.W.2d 590, 595 (Iowa 1978). Since Frank occupied in the
capacity of a lessee rather than as devisee or heir, the lease terms
and landlord-tenant statutes would apply. To terminate the lease
the executor would have to proceed under sections 562.6 and
562.7 of the Code, and then to obtain actual possession over
Frank’s objection the executor would have to proceed by plenary
action in district court, under the last sentence of section 633.351.
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Here, because Bard occupied the farm under lease, “the executor would step into
the shoes of the decedent-lessor” and “the lease terms and landlord-tenant
statutes would apply.”
In order to terminate Bard’s lease, the executor-lessor was required to
give notice, see Iowa Code § 562.7 (notice requirements), or the parties could
agree to terminate. See id. § 562.6 (agreement of termination). The executor did
not give the required notice, and the parties did not agree to terminate. Thus,
Bard’s lease continued with its original terms.
The executor argues:
(1)
(2)
(3)
(4)
(5)
The lease terminated upon the death of Marjorie Giltner
through the provisions of her will.
Bard should be estopped from asserting a notice
requirement to terminate a lease that he never claimed
existed until the executor’s Claim for Rent.
Bard should be required to pay rent for the fair market value
of the land because of his fiduciary duty to the estate.
Bert is a remainderman for the farm and did not agree to the
continuation of the lease and the estate should be
compensated.
Bard Giltner knew or should have known that there was a
mistake about the ownership of the farm and should not be
unjustly enriched.
The first and fourth arguments of the executor are premised upon an
assertion that Marjorie Giltner had a life estate in the farm. As already noted,
Marjorie Giltner’s interest was that in fee simple subject to an oral lease and thus
those arguments are summarily rejected.
We agree with the district court that neither the executor’s equitable
estoppel nor unjust enrichment theories preclude the application of the notice
requirements in this case. Both brothers mistakenly believed Bard was the sole
owner of the farm involved here. Their belief was not a result of bad faith, but
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mutual mistake. Equity will not interfere under such circumstances. Cf. Wilden
Clinic, 229 N.W.2d at 289 (noting “equity will interfere, in its discretion, in order to
prevent intolerable injustice”) (citation omitted).
The executor did not raise the claim in the district court that rent was
required in light of Bard’s fiduciary duty. Consequently, the claim is not properly
before us. See id. (noting appellate court review is for those issues “raised and
error, if any, preserved in the course of the trial court’s proceedings”).
IV. Conclusion.
Because Marjorie Giltner, at the time of her death, was the fee simple
owner of the farm subject to an oral lease with her son, Bard Giltner, the lease
terms and landlord-tenant statutes would apply. The executor did not give the
required notice, and the parties did not agree to terminate the lease. Thus,
Bard’s lease continued with its original terms, and the estate was not entitled to
additional rent. We affirm.
AFFIRMED.
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