                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0339
                            Filed December 20, 2017


IN THE MATTER OF THE ESTATE OF CLARENCE M. BREHM, deceased.

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      Appeal from the Iowa District Court for Dubuque County, Monica L. Ackley,

Judge.



      A beneficiary challenges district court order finding he waived his option to

purchase real estate under the terms of his father’s will. APPEAL DISMISSED.



      David A. Lemanski, Dubuque, for appellant.

      Dean J. Konrardy of Kintzinger Law Firm, P.L.C., Dubuque, and Todd

Locher of Locher & David, P.L.C., Farley, for appellee.




      Considered by Vogel, P.J., and Tabor and Bower, JJ.
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VOGEL, Presiding Judge.

   I. Background Facts and Proceedings

       Clarence Brehm died April 13, 2015, leaving a will that gave his son,

Douglas Brehm, a one-third interest in his farm real estate, and gave him the option

to buy the remaining two-thirds from his estate for $92,000. The will also provided

that if Douglas elected not to purchase the remaining two-thirds of the real estate,

“this gift shall lapse and the property shall be sold by my estate on the open market”

with the proceeds divided equally between Janet (his surviving spouse), Douglas,

and Douglas’s sister. The will nominated Janet to serve as executor of the estate.

       On June 26, 2015, Janet elected to take her share against the will.

Thereafter, on September 4, Douglas filed notice to exercise his right to purchase

the remaining two-thirds of the real estate. On September 18, Janet, as executor,

filed the probate inventory reflecting the real estate appraised at $767,314.

       The district court ordered a referee be appointed to identify Janet’s elective

share, provide direction as to the distribution of proceeds, and provide direction as

to the allocation of income and expenses related to the farm. On June 6, 2016,

the referee submitted his report finding Janet’s election against the will rendered

Douglas’s option to purchase, for $92,000, a legal impossibility because the fair

market value of Janet’s elective share as of Clarence’s date of death was valued

much higher. On July 14, the district court entered an order confirming most of the

referee’s findings and providing Douglas sixty days from the filing of a new

appraisal to submit his intent to purchase the remaining portion of the real estate.

Douglas did not appeal from this order. The new appraisal was filed on September
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30. With no filing by Douglas of an intent to purchase, the district court entered an

order on February 16, 2017, confirming Janet was authorized to sell the real estate.

         Douglas filed a notice of appeal on March 2, 2017.

   II. Standard of Review

         Except for actions to set aside or to contest wills, for the involuntary

appointment of a guardian or conservator, or for the establishment of contested

claims, probate cases are tried in equity.        Iowa Code § 633.33 (2015). We

determine the probate court was acting in equity in approving the referee’s report

and establishing directives for the exercise of the option to purchase. Our review

is therefore de novo. Iowa R. App. P. 6.907.

   III. Jurisdiction

         On appeal, Douglas first asserts the district court erred in permitting the sale

of the real estate because he elected to purchase the real estate for $92,000 on

September 4, 2015, and has never withdrawn that election. Janet asserts this

court does not have jurisdiction because Douglas’s appeal was untimely. We

agree.

         As noted above, Janet elected to take her share of the estate instead of

what was provided for her in the will. See Iowa Code § 633.236 (allowing for the

surviving spouse to take an elective share). Since the parties could not agree to

the amount of Janet’s elective share, Janet filed an application to have the share

set off by a referee. See id. § 633.247 (allowing for a referee appointed by the

court to set off the share of the surviving spouse).           After a hearing on the

application, a referee was appointed. See id. § 633.248 (allowing the court to set

a hearing for the appointment of a referee).
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         On July 14, 2016, the district court entered an order adopting most of the

referee’s report, with the remaining portion to be confirmed upon receipt of an

appraisal. See id. §§ 633.36, 633.251; In re Estate of Jarvis, 185 N.W.2d 753, 756

(Iowa 1971). Critical to this appeal, the July 14 order gave Douglas sixty days after

the filing of the appraisal to submit his intent to exercise his right to purchase the

remaining portion of the real estate. Had Douglas not agreed with the court’s order

as to method, timeframe, or even the necessity of having to submit his intent to

purchase the real estate again, he should have appealed from that order. He did

not.1

         Iowa Code section 633.36 states: “All orders and decrees of the court sitting

in probate are final decrees as to the parties having notice and those who have

appeared without notice.” Only after the district court authorized the sale of the

real estate on February 16, 2017 after Douglas failed to submit his intent to

purchase the real estate, did Douglas appeal, bypassing the substance of the July

14, 2016 order. The district court’s July 14 order confirming the referee’s report

and directing Douglas “to submit his intent to exercise his right to purchase the

remaining two-thirds” was a final decree and was appealable as a matter of right

within thirty days of that date. Iowa R. App. P. 6.101(1)(b) (“A notice of appeal

must be filed within 30 days after the filing of the final order or judgment.”). Douglas

did not file an appeal within thirty days, making his subsequent appeal untimely,

and we have no jurisdiction to consider his claim that his initial election to purchase




1
    Nor did Douglas submit his intent to purchase within the sixty-day timeframe.
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the real estate is still valid. In re Estate of DeTar, 572 N.W.2d 178, 182 (Iowa Ct.

App. 1997).

       Likewise, we have no jurisdiction to consider the Douglas’s second claim

on appeal—that the district court incorrectly interpreted the residuary language in

the will in light of Janet’s election to take against the will. The district court ruled

on its interpretation of how the residuary was to be defined and handled in the July

14, 2016 order, and Douglas did not file a notice of appeal until March 2, 2017.

Because Douglas did not appeal the court’s order regarding the residuary clauses

within thirty days of that order, we do not have jurisdiction to consider this claim.

See id.

       Accordingly, we must dismiss the appeal.

       APPEAL DISMISSED.
