                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1271
                                Filed July 3, 2019


IN THE MATTER OF THE TRUST UNDER THE WILL OF W.H. DAUBENDIEK,

BILLY JOE DAUBENDIEK, a/k/a BILLY JOE DAUBENDECK,
     Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Palo Alto County, Donald E.

Courtney, Judge.



       Billy Joe Daudendiek, a/k/a Billy Joe Daubendeck, appeals a ruling

concluding he does not have an interest in a trust. AFFIRMED.



       Steven W. Hendricks of Kersten Brownlee Hendricks, PLLC, Fort Dodge,

for appellant.

       James L. Kramer of Johnson, Kramer, Mulholland, Cochrane & Cochrane,

P.L.C., Fort Dodge, for appellees.




       Heard by Potterfield, P.J., and Doyle and May, JJ.
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MAY, Judge.

       This case involves a dispute over who can benefit from a trust created by

W.H. Daubendiek’s will. Billy Joe Daudendiek, a/k/a Billy Joe Daubendeck, who

is W.H.’s great-grandson by adoption, claims an interest in the trust. The trustees

contest Billy Joe’s claim. The district court granted summary judgment in their

favor. For the following reasons, we affirm.

I.     Facts and Prior Proceedings

       In 1942, W.H. Daubendiek executed a will.               The will created a trust

benefitting some of W.H.’s descendants. The will named nine beneficiaries for the

trust, including W.H.’s “beloved grandson, Joe.” The will also provided that, “in the

event of” a named beneficiary’s death, his or her interest would pass to his or her

“lawful bodily issue.” The will stated in relevant part:

               The beneficial interest shall be apportioned as follows:
       to my beloved wife, Matilda E. Daubendiek, or in the event of her
       death, to her lawful bodily issue, per stirpes, fifteen per centum
       (15%); to my beloved son, C. H. Daubendiek, or in the event of his
       death, to his lawful bodily issue, per stirpes, twenty five per centum
       (25%); to my beloved daughter, Letha I. Leonard, or in the event of
       her death, to her lawful bodily issue, per stirpes, twenty five per
       centum (25%); to my beloved granddaughter, Ruth Daubendiek, or
       in the event of her death, to her lawful bodily issue, per stirpes, five
       per centum (5%); to my beloved grandson, Joe R. Daubendiek,[1] or
       in the event of his death, to his lawful bodily issue, per stirpes, five
       per centum (5%); to my beloved grandson, Robert W. Daubendiek,
       or in the event of his death, to his lawful bodily issue, per stirpes, five
       per centum, (5%); to my beloved granddaughter, Bertha A.
       Daubendiek, or in the event of her death, to her lawful bodily issue,
       per stirpes, five per centum (5%); to my beloved grandson, William
       C. Daubendiek, or in the event of his death, to his lawful bodily issue,
       per stirpes, five per centum (5%); to my beloved grandson, Gene E.

1
  Joe is identified in the will as Joe R. Daubendiek. However, he is later referred to by all
parties as either Joe E. Daubendeck or Joe E. Daubendiek. No party challenges Joe’s
interest in the trust based on the discrepant references to his middle initial or spelling of
his last name.
                                           3


       Daubendiek, or in the event of his death, to his lawful bodily issue,
       per stirpes, five per centum (5%); to my beloved nephew, F. W.
       Daubendiek, or in the event of his death, to his lawful bodily issue,
       per stirpes, five per centum (5%).
               In the event of the death of any of said beneficiaries without
       leaving lawful bodily issue, then the share and interest of such
       beneficiary shall be apportioned among the other beneficiaries in the
       same ratio.

(Emphasis added.)

       W.H. died in 1948. In 1956, Joe adopted a child. Joe named the child Billy

Joe.

       Joe died in 2016. In 2017, Billy Joe filed the present action. Billy Joe asked

the district court to “to confirm that Billy Joe” and his “descendants are the lawfully

bodily issue of Joe” for purposes of the trust.2

       The trustees moved for summary judgment. They argued that, under Iowa

law, “an adopted person such as Billy Joe . . . is not a beneficiary” of the trust

because he is not “the ‘lawful bodily issue’ of his adopted parent,” Joe.

       The district court granted summary judgment in favor of the trustees. Billy

Joe now appeals.

II.    Scope and Standard of Review

       “We review summary judgment rulings for correction of errors at law.” Roll

v. Newhall, 888 N.W.2d 422, 425 (Iowa 2016). “On review, we examine the record

before the district court to determine whether any material fact is in dispute, and if

not, whether the district court correctly applied the law.” Id. (internal quotations

and citation omitted). We consider “the record in the light most favorable to the



2
 Billy Joe also asserted claims related to his sister, Umi. Those claims are not at issue
on appeal.
                                             4


nonmoving party and will grant that party all reasonable inferences that can be

drawn from the record.” Id. (citation omitted).

III.   Discussion

       The issue here is whether an adopted child, such as Billy Joe, can benefit

from the trust created by W.H.’s will. “[T]he cardinal rule of will construction is that

‘the intent of the testator is the polestar and must prevail.’” Id. at 426 (quoting In

re Estate of Rogers, 473 N.W.2d 36, 39 (Iowa 1991)). “In determining the testator’s

intent, we consider (a) all of the language contained within the four corners of the

will, (b) the scheme of distribution, (c) the surrounding circumstances at the time

of the will’s execution[,] and (d) the existing facts.” Id. (internal quotations and

citation omitted). “The court applies an objective standard when determining the

testator’s intent.” Id. “We consider ‘what the testator did say’ and ‘not what the

testator meant to say.’” Id. (citation omitted). “Testators are presumed to know

the legal effect of language in their wills . . . .” Id.

       In general, Iowa law presumes that a testator “intended to treat adopted

children in the same manner as natural children.” Elliott v. Hiddleson, 303 N.W.2d

140, 144 (Iowa 1981). This presumption does not apply, however, where “an intent

to exclude adopted children” is shown. Id. at 144–45.

       In this case, the district court noted that, “[a]fter every named beneficiary in

[W.H.’s] will[,] the phrase ‘lawful bodily issue’ is used to describe who will receive

that [named beneficiary’s] share [of the trust] in the event that . . . named

beneficiary dies.” (Emphasis added.) The key question, then, is whether “lawful

bodily issue” includes adopted children like Billy Joe.
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       In Skoog v. Fredell, our supreme court considered a similar phrase, “heirs

of the body.” 332 N.W.2d 333, 335 (Iowa 1983) (emphasis added). The Skoog

court concluded that “heirs of the body” means only “bodily heirs or natural born

children,” not adopted children. Id.

       Based on Skoog, the district court correctly reasoned that “[t]he use of

‘lawful bodily issue” in W.H.’s will “indicates the intent to only include direct blood

descendants and therefore to exclude adopted persons.”              (Emphasis added.)

Accordingly, the district court correctly concluded that Billy Joe has no interest in

the trust.

       Billy Joe points to an affidavit signed by Martin Begleiter, a lawyer and law

professor.    Professor Begleiter opines that the language of W.H.’s will is

ambiguous. Billy Joe contends Professor Begleiter’s opinions create a genuine

issue of material fact.

       We disagree. Professor Begleiter’s opinions are mainly legal arguments

concerning a legal issue, namely, how we should interpret the will.3 Cf. Cook v.

State, 431 N.W.2d 800, 804 (Iowa 1988) (noting experts may not “state opinions

as to legal standards”); Oldham by Oldham v. Shenandoah Cmty. Sch. Dist., 461

N.W.2d 207, 208 (Iowa Ct. App. 1990) (noting “experts may not give opinions on

questions of law”).




3
    Professor Begleiter refers to his general understanding of how lawyers and clients
sometimes interact. For example, he opines “it is not unusual for attorneys to adopt
legalisms that are used without the express direction of the testator or trustor.” But he
professes no knowledge concerning the specific facts surrounding the execution of the will
at issue here.
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       Moreover, even after considering Professor Begleiter’s arguments, we do

not conclude the will is ambiguous for present purposes. We have found no

reasonable interpretation of the will under which an adopted child, who is not Joe’s

“lawful bodily issue,” can receive Joe’s interest in H.W.’s trust.

       Billy Joe also argues Scroog should be overturned. This court, however, is

not at liberty to overturn our supreme court’s precedent. See State v. Beck, 854

N.W.2d 56, 64 (Iowa Ct. App. 2014).

IV.    Conclusion

       The district court was correct in granting summary judgment and dismissing

Billy Joe’s petition.

       AFFIRMED.
