              IN THE SUPREME COURT OF IOWA
                              No. 09–1105

                         Filed August 19, 2011


IN THE MATTER OF THE ESTATE OF RALPH ROETHLER, Deceased,

KENT LEWIS and BECKY LEWIS,

      Appellees.

vs.

ANGELA M. KUEHN, CHERYL L. UPTON, JACQUELYN F.
BETSWORTH, DANIEL W. ROETHLER, MARY ANNE JAMES, JAMES
F. ROETHLER, DONALD A. ROETHLER, CONSTANCE L. DUKE,
GERALD E. ROETHLER, KATHLEEN S. GOOD, JOHN M. ROETHLER,
DANIEL LEE HOMAN, and FRANK E. HOMAN,

      Appellants.

R. STEPHEN HANKENS,

      Intervenor-Appellee.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Cherokee County, Nancy L.

Whittenburg, Judge.



      Petitioners seek further review of court of appeals decision

reversing district court order to reopen estate.   COURT OF APPEALS

DECISION VACATED; DISTRICT COURT JUDGMENT AFFIRMED.



      Frank J. Comito of Neu, Minnich, Comito & Neu, P.C., Carroll,

Erin E. McCullough of the Law Offices of Erin E. McCullough, Lake View,

and David P. Jennett, Storm Lake, for appellees.
                                 2



      George W. Wittgraf of Sayre, Wittgraf & Meloy, Cherokee, for

appellants.

      Steven T. Roth of Roth Law Office, Storm Lake, for intervenor-

appellee R. Stephen Hankens.
                                     3

ZAGER, Justice.

      In this appeal, we must determine when the district court can

properly reopen a probate estate under Iowa Code section 633.489

(2009).   Becky and Kent Lewis (“Lewises”), plaintiffs, sought to reopen

Ralph Roethler’s estate to allow them to exercise a “first right to

purchase” eighty acres of farmland. The executor of the estate did not

notify the Lewises that the will contained this right during the

administration of this estate. The district court held the Lewises met the

statutory grounds set out in section 633.489 to reopen Ralph Roethler’s

estate.   The court of appeals reversed, holding the Lewises’ petition to

reopen was time-barred under section 633.488, which controls when an

estate’s final accounting and settlement agreement may be reopened. On

further review, we find the Lewises’ petition to reopen satisfied the

statutory grounds set forth in section 633.489 to reopen an estate. We

also find the district court properly construed the will to permit the

Lewises to exercise their first right of purchase irrespective of the

executor’s intent to sell the land. Accordingly, the decision of the court

of appeals is vacated, and the district court’s judgment is affirmed.

      I. Background Facts and Proceedings.

      In 1987, the Lewises entered into a lease to farm two parcels of

property owned by Ralph and Marjorie Roethler. One parcel was eighty

acres owned solely by Ralph.     The other parcel was 160 acres owned

solely by Marjorie. The Roethlers lived in a home in Aurelia, owned by

Ralph. The Lewises and their children also rented the farmhouse located

on Marjorie’s parcel. This arrangement continued through 1994. During

this time, the relationship between the Lewises and the Roethlers grew

close. The Roethlers had no children, but Marjorie baked birthday cakes

for the Lewises’ children.     Kent Lewis made improvements to the
                                      4

farmstead, and the Roethlers offered the Lewises other considerations

like interest free loans and a discounted vehicle.

      On February 1, 1994, Ralph executed his last will and testament.

Attorney Stephen Hankens drafted the will.           Paragraph V of the will

provided:

      V. I herein give Kent Lewis and Becky Lewis the first right of
      purchase to the following described real estate, to-wit:

      80 Acres in Diamond Township, Section One; at the
      appraised value in the Estate. This right to purchase shall
      be given them for a period of four months from my date of
      death. Notice of said right to purchase shall be filed in my
      Estate in writing.

The eighty-acre parcel of farm real estate listed in section V is the subject

of this dispute. At the time of Ralph’s death, it was valued at $140,600.

      The Lewises always intended on purchasing farmland of their own.

Toward the end of 1994, the Lewises purchased ten acres of their own

and informed Ralph and Marjorie they would be moving out of the

farmhouse. After the Lewises moved off the property, they also stopped
farming the Roethlers’ land.      On December 13, 1994, the Roethlers

contracted with Neal and Kathleen Pearson to rent, live on, and farm

their two parcels.      After the Lewises moved off of the acreage, their

relationship with the Roethlers grew apart.

      On July 3, 1999, Ralph died. The Lewises, along with three other

families that had rented from the Roethlers, were listed as an “honorary

family” on the funeral program. The Lewises attended the funeral. The

Lewises testified Kent was a pallbearer, but he was not listed as a

“casketbearer” on the funeral program, and Ralph’s nephew said Kent

was not a pallbearer.

      Ralph’s will was admitted to probate on July 19, 1999. The notice

of probate was published in the local newspaper with a second
                                      5

publication date of August 2, 1999. Pursuant to the notice, any claims

against the estate would be barred if not filed within four months. Also,

an affidavit of mailing notice was given to all the residual beneficiaries

(“the beneficiaries”) who are defendants in this appeal.      No notice was

mailed to the Lewises despite paragraph V of Ralph’s will, which

specifically named the Lewises. Marjorie was named the executor, and

the will awarded her a life estate in all of Ralph’s real property, with the

remainder to the beneficiaries. Hankens was the attorney for the estate.

Hankens filed the final report in October 1999.        The report of referee

approved the final report, subject to a minor tax issue. The final report

was approved on November 22, 1999, prior to the claims-bar date. Title

to the eighty acres of real estate was changed the next day to reflect

Marjorie’s life interest and the beneficiaries’ remainder interest.

      The Lewises were not made aware by the attorney for the estate,

the executor of the estate, or any other party that Ralph’s will specifically

named them or that the will was being probated.

      Marjorie passed away in 2008.        The Lewises did not attend the

funeral. During the probate of her estate, the beneficiaries contracted to

sell Ralph’s eighty acres to Neal and Kathy Pearson for the appraised

value of $408,000.       A title opinion performed on the real estate

discovered Ralph’s probate file did not contain a notice showing the

Lewises waived their option to purchase the subject real estate as

required under Ralph’s will. The Pearsons’ attorney sent the Lewises a

letter asking them to waive their option to purchase Ralph’s eighty acres.

This was the first time the Lewises were apprised that Ralph’s will

afforded them a first right to purchase Ralph’s eighty-acre farm.        The

Lewises indicated they would have been interested in purchasing the
                                        6

eighty-acre farm and had the financial capacity to purchase the land in

1999.

        On June 23, 2008, Kent Lewis filed a petition to reopen Ralph’s

estate.   The beneficiaries resisted.       After a hearing, the district court

ordered the estate reopened under Iowa Code section 633.489 to

determine whether the Lewises had a valid option to purchase.

Hankens, who was now a defendant in a negligence action filed against

him by the Lewises, was allowed to intervene.

        Trial was held on May 27, 2009, to construe Ralph’s will and

determine whether Ralph’s will provided the Lewises a valid first right to

purchase Ralph’s eighty acres. The district court held Ralph’s will gave

the Lewises an option to purchase Ralph’s eighty acres, irrespective of

Marjorie’s decision to sell the land.

        The beneficiaries appealed. The case was transferred to the court

of appeals. The court of appeals determined the district court abused its

discretion in reopening the estate because the Lewises were time-barred

under Iowa Code section 633.488. The court of appeals therefore did not

have to reach the will construction issue.          The Lewises petitioned for

further review, which we granted.

        II. Standard of Review.

        A petition to reopen an estate requires the court to engage in a

two-step decision process.        First, the district court must make a

preliminary    determination   whether        the   plaintiff   has   asserted   a

permissible reason for reopening the estate. In re Estate of Warrington,

686 N.W.2d 198, 202 (Iowa 2004).            This determination is governed by

Iowa Code sections 633.487, 633.488, and 633.489.                 We review the

district court’s preliminary decision as to whether to reopen the estate

under section 633.489 for abuse of discretion. In re Estate of Witzke, 359
                                           7

N.W.2d 183,184–85 (Iowa 1984). The district court abuses its discretion

when it exercises its discretion “on grounds clearly untenable, or to an

extent, clearly unreasonable.”         In re Estate of Lynch, 491 N.W.2d 157,

161 (Iowa 1992).

       Once reopened, the district court must determine on the merits

whether the plaintiffs are entitled to the relief they seek. Warrington, 686

N.W.2d at 202–04. Probate matters are tried in equity, and the district

court’s ruling on the merits is reviewed de novo. Id. at 202. “Under a de

novo standard of review, we are not bound by the trial court’s

conclusions of law or findings of facts, although we do give weight to

factual findings, particularly when they involve the credibility of

witnesses.” Id.

       III. Issues.

       First, we must determine whether the district court abused its

discretion in reopening the estate. 1 Second, if the district court properly

reopened the estate, we must review the district court’s holding that the

will provided the Lewises a right to purchase the property within four

months of Ralph’s death. Third, if the Lewises have a right to purchase

the land, we must determine whether they must pay the current value
for the eighty acres, not the land’s value at the time of the initial probate.

     IV. District Court Did Not Abuse Its Discretion In Reopening
Estate.

       The beneficiaries assert the district court abused its discretion in

reopening the estate because it applied section 633.489 when making its


       1The Lewises also allege in their further review materials that time-barring their
claim under section 633.488 violates procedural due process. They did not make this
argument in the district court nor did they argue it on appeal. Only after the court of
appeals’ adverse ruling do the Lewises allege this alternative argument. Accordingly,
the argument is waived. See State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997).
                                       8

determination to reopen the estate. The beneficiaries argue the district

court should have applied section 633.488 that time-bars the Lewises’

claim.

         A. Background.      Iowa Code sections 633.487, 633.488, and

633.489 govern when an estate can be reopened, but only sections

633.488 and 633.489 are relevant in this matter.            Section 633.488

states:

                Whenever a final report has been approved and a final
         accounting has been settled in the absence of any person
         adversely affected and without notice to the person, the
         hearing on such report and accounting may be reopened at
         any time within five years from the entry of the order
         approving the same, upon the application of such person,
         and, upon a hearing, after such notice as the court may
         prescribe to be served upon the personal representative and
         the distributees, the court may require a new accounting, or
         a redistribution from the distributees. In no event, however,
         shall any distributee be liable to account for more than the
         property distributed to that distributee. If any property of
         the estate shall have passed into the hands of good faith
         purchasers for value, the rights of such purchasers shall
         not, in any way, be affected.

Iowa Code § 633.488. Section 633.488 thus allows adversely affected,

interested persons who did not receive notice of the estate’s final report

and accounting, a five-year window to ask for a new accounting,

settlement hearing, or redistribution. We have little case law construing

this provision.

         Section 633.489 states:

               Upon the petition of any interested person, the court
         may, with such notice as it may prescribe, order an estate
         reopened if other property be discovered, if any necessary act
         remains unperformed, or for any other proper cause
         appearing to the court.
                                      9

Iowa Code § 633.489.        This provision permits any interested party to

reopen the estate if the party can show (1) new property, (2) a “necessary

act” remains, or (3) “any other proper cause” exists. Id.

       There is more case law applying section 633.489. In Witzke, the

plaintiffs sought to reopen the estate to seek rescission of a real estate

sale   made     during   probate   because   the   administrator     allegedly

misrepresented the boundaries of the property sold to them. Witzke, 359

N.W.2d at 184. We reasoned “ ‘necessary act’ in section 633.489 refers

to an act that is required by law of the administrator in order to properly

close the estate.”    Id.   We concluded this ground did not apply, as

rescission of a sale was not needed to close the estate.       Id.   We also

reasoned “any other proper cause” permits “the district court to exercise

discretion in considering a petition that alleges a cause for reopening

other than the two causes specifically enumerated.”         Id. at 185.   We

determined the district court did not abuse its discretion by declining to

reopen the estate because the district court reasonably determined that

holding the estate liable for an administrator’s fraud was an undesirable

reason to reopen the estate. Id.

       In three subsequent cases, we have reopened the estate under

section 633.489. In Ritz v. Selma United Methodist Church, 467 N.W.2d

266 (Iowa 1991), the plaintiffs sought to reopen the estate after $24,000

in new property was found buried underneath a structure that had been

abandoned by the estate. Ritz, 467 N.W.2d at 268. The district court

concluded the plaintiffs were time-barred under section 633.488. Id. at

269. We reversed, finding the plaintiffs’ claim was governed by section

633.489, which expressly authorizes reopening an estate if new property

is found.     Id. at 270.   In Lynch, we reversed the district court and

concluded the estate should be reopened to recalculate executor fees.
                                    10

Lynch, 491 N.W.2d at 160–61.         The executor, a bank, mistakenly

believed a marital trust was part of the gross estate and subject to Iowa

inheritance tax which thereby increased their fees.        Id.   We noted

“equitable principles” favored reopening the estate to prevent the bank

from profiting from its mistake at the expense of beneficiaries. Id. We

later cited Lynch for the proposition that “[t]he correction of mistakes

made by an executor may constitute proper cause to reopen an estate.”

Warrington, 686 N.W.2d at 205 (citing Lynch, 491 N.W.2d at 161).

Finally, in Warrington, the deceased’s wife sought to reopen the estate to

sell a remainder interest in real property to generate cash for her

support. Id. at 200–01. We found this was a “proper cause” to reopen

the estate. Id. at 205. We also found the beneficiaries’ argument that

section 633.488 created a statutory bar to plaintiff’s claim “lacking in

merit” and reversed the district court’s decision not to reopen the estate.

Id.

      B. Reconciliation of Provisions and Cases. In our only attempt

to distinguish between sections 633.488 and 633.489 we stated:

            Section 633.488 contemplates a reopening of matters
      which have been previously considered in the final
      accounting, distribution, and settlement order.      Section
      633.489, on the other hand, is aimed at reopening a closed
      estate for the purpose of administering property omitted
      from the inventory or performing other necessary acts which
      were not performed during the original administration.

Ritz, 467 N.W.2d at 270. The provisions seem to concern two distinct

scenarios. Section 633.488 permits distributees, not given notice of the

final report, to have a hearing to reopen the accounting to ensure the

estate was properly accounted, settled, and distributed. Section 633.489

governs when plaintiffs seek to readminister or structurally change the

estate’s administration in a way not contemplated during probate, as
                                    11

evidenced by its application in cases of newly found property. We reach

this conclusion for a number of reasons.

       First, the remedy each section affords supports this distinction.

The remedy under section 633.488 is limited: “[T]he hearing on such

report and accounting may be reopened . . . [and] the court may require

a new accounting, or a redistribution from distributees.”       Iowa Code

§ 633.488.    Section 633.488 only authorizes the court to hold another

final report hearing, order new accounting, or order redistribution

amongst the distributees, but it does not authorize the court to perform

property transactions or other substantial acts. Id. In contrast, section

633.489 broadly authorizes the court “to administer any additional

property or to perform other such acts as may be deemed necessary.” Id.

§ 633.489.

       Second, section 633.488’s time bar, and section 633.489’s

indefinite application support the articulated distinction.      If section

633.488 applies to previously considered matters in which the final

report was approved and “settled in the absence of . . . and without

notice to” the complaining party, then a five-year statute of limitations is

logical.   Id. § 633.488.   Conceivably, the complaining party made his

claim, but was not made a party to the resolution at final settlement.

This party would be aware of the probate and on notice, making a five-

year time-bar apposite.     Section 633.489 applies where future events

require administration of matters not considered in the final report, and

a time-bar is inconsistent with this purpose.

       Third, our cases also support this distinction. In cases applying

section 633.489, the estates were reopened to reinventory property, to

perform acts not considered in the original administration, or to perform

acts more substantial than just distribution amongst distributees—
                                           12

(1) Ritz reopened the estate upon finding $24,000 in new property,

(2) Lynch reopened the estate to reduce improperly awarded executor

fees, and (3) Warrington reopened the estate to sell a remainder property

interest for support of the decedent’s wife.               In each of these cases,

plaintiffs sought to perform an act that administrators did not

contemplate in the final accounting, distribution, and settlement order.

Moreover, these actions required more than simply redistributing

property amongst distributees, as contemplated in section 633.488. 2

       The court of appeals drew a distinction between sections 633.488

and 633.489 on a different basis—whether the plaintiffs received notice

of probate. Arguably, this inference is supported by Moser v. Brown, 249

N.W.2d 612 (Iowa 1977), as we reasoned that, “[s]ince Moser received no

notice[,] he had five years from the date of the closing to petition for

reopening” under section 633.488. Moser, 249 N.W.2d at 615.

       Distinguishing the two provisions on the basis of notice, however,

is not the correct approach in reviewing the statutes. Section 633.489 is

not defined in terms of notice.          The provision simply says the district

       2In  Moser v. Brown, 249 N.W.2d 612 (Iowa 1977), we cited to section 633.488 as
authority for reopening the estate to allow Moser to continue his personal injury lawsuit
against the estate. Moser, 249 N.W.2d at 612. Moser brought suit against Brown who
died shortly thereafter. Id. at 614. Moser substituted the executors of Brown’s estate
as defendants, but the executors closed Brown’s estate without ever providing the
plaintiff notice. Id. We noted Moser’s claim was not cut off by the estate’s closing
because he was entitled to notice of the estate’s closing. Id. at 615. We cited to section
633.488, concluding: “Since Moser received no notice he had five years from the date of
the closing to petition for reopening.” Id. Our conclusory reasoning creates an
inference that the application of section 633.488 is tied solely to notice. This inference
is inappropriate for several reasons. First, Moser petitioned to reopen the estate three
months after the estate closed, making the five-year time-bar inapplicable. Id. at 614.
Therefore, the court had no reason to intensely analyze whether sections 633.488 or
633.489 applied. Second, Moser predates Witzke, Ritz, Lynch, and Warrington which
give the relevant guidance on section 633.489 claims applicability. Third, Moser
involves a factual situation where the claimant made a valid claim against the estate,
but was merely excluded from final settlement—a scenario contemplated in section
633.488 and unrelated to notice. Moser, unlike the Lewises, was aware of his claim
against the estate during the estate’s administration.
                                      13

court “may” reopen an estate “if other property be discovered, if any

necessary act remains unperformed, or for any other proper cause.”

Iowa Code § 633.489. Notice, or the lack thereof, plays no part in this

provision. Section 633.489 simply applies if some future happenstance

or finding, unattended to during probate, requires the estate to be

reopened.

      C. Beneficiaries’     Section        633.488   Good-Faith-Purchaser

Argument Is Not Applicable. The beneficiaries argue section 633.488

applies because it states the rights of good faith purchasers for value of

estate property “shall not, in any way, be affected.”

      The argument presupposes section 633.488 is applicable in this

case, as section 633.489 does not contain a good-faith-purchaser clause.

The beneficiaries’ argument, however, provides no reason why section

633.488 should apply.     The beneficiaries merely state section 633.488

should apply, without giving any reason, and then argue this language

protects the Pearsons as good faith purchasers for value of Ralph’s eighty

acres. This argument puts the cart before the horse. For reasons stated

above, we find the district court properly applied section 633.489 to the

plaintiffs’ request to reopen Ralph’s estate.

      Alternatively, the beneficiaries have not shown the Pearsons are

good faith purchasers for value of the eighty acres. “ ‘The rule is well

established that to be a good faith purchaser for value, one must show

that he made the purchase before he had notice of the claim of another,

express or implied.’” Moser v. Thorp Sales Corp., 312 N.W.2d 881, 886

(Iowa 1981) (quoting Janssen v. N. Iowa Conference Pensions Inc. of

Methodist Church, 166 N.W.2d 901, 908 (Iowa 1969); see also Moser v.

Thorp Sales Corp., 256 N.W. 2d 900, 910–11 (Iowa 1977) (citing Raub v.

Gen. Income Sponsors of Iowa, Inc., 176 N.W.2d 216, 219 (Iowa 1970)
                                    14

(defining a bona fide purchaser as “one who takes a conveyance of real

estate in good faith from the holder of legal title, paying a valuable

consideration for it without notice of outstanding equities”)).      A real

estate contract has been signed, and the Pearsons’ down payment is in

escrow, but title has not been transferred. The title examiner raised an

issue about the Lewises’ right to purchase which prevented the Pearsons

from closing on the sale. If the sale falls through, the Pearsons get their

money back, and their only prejudice is having a down payment sit in

escrow during the pendency of this litigation.     The Pearsons have not

purchased the eighty acres; therefore, they could not qualify as good

faith purchasers for value.

      D. No Abuse of Discretion.         The district court reopened the

estate under section 633.489. The beneficiaries claim the district court

abused its discretion by not applying section 633.488. We disagree. For

the reasons stated above, the Lewises’ right to purchase, which came to

light years after the estate was closed, was the type of event which falls

within section 633.489.

      The district court determined section 633.489 applied because the

plaintiff’s option to purchase had not been previously considered. The

court then looked to the three statutory grounds set forth in 633.489 for

reopening the estate. The court found the “necessary act” and “any other

proper cause” grounds both applied in this case.        The district court

found the executor of the estate failed to perform “all necessary acts”

because the executor failed to notify the plaintiffs of the probate of the

will, in violation of Iowa Code section 633.304, which requires all persons

“believed to own or possess a claim” to be notified. The district court also

used its discretion to conclude “the lack of notice to the Lewises

throughout the probate of the will constitutes proper cause for reopening
                                     15

the estate.”    Moreover, there are minimal practical difficulties in

exercising the option as the land still remains with the distributees. See

Warrington, 686 N.W.2d at 205 (noting practical difficulties in reopening

estate or deprivation of beneficiaries of testamentary devise are reasons

that might justify not opening an estate).

      We concur with the district court’s reasoning on the “necessary

act” ground and the “any other proper cause” ground. A court abuses its

discretion only when its exercise of discretion is “clearly untenable, or to

an extent, clearly unreasonable.” Lynch, 491 N.W.2d at 161. We find

the district court’s determination that this case’s equitable facts

constituted a “proper cause” to reopen the estate under Iowa Code

section 633.489 to be neither untenable nor unreasonable. The district

court did not abuse its discretion in reopening the estate.

      V. Will Construction.

      The beneficiaries    next contend the      district court erred in

construing the will.

      Ralph’s will states in pertinent part:

      II. I give, devise and bequeath to my spouse, Marjorie
      Roethler, a life estate in all real estate I may own at the time
      of my death upon the condition that she survives me.

      III. Subject to a life estate in my spouse, Marjorie Roethler, I
      give, devise, and bequeath the remaining interest in the real
      estate I own at the time of my death to the following: Angela
      Kuehn, Margaret Homan, Cheryll Upton, Jacqueline
      Betsworth, Daniel Roethler, James Roethler, John Roethler,
      Donald Roethler, Jerald Roethler, Mary Anne James, Connie
      Duke, and Kathy Good, share and share alike.

      ....

      V. I herein give Kent Lewis and Becky Lewis the first right of
      purchase to the following described real estate, to-wit:

      80 Acres in Diamond Township, Section One; at the
      appraised value in the Estate. This right to purchase shall
      be given them for a period of four months from my date of
                                    16
      death. Notice of said right to purchase shall be filed in my
      Estate in writing.

      ....

      VII. I give my Executor, hereinafter named, the authority to
      sell and to turn into cash any property that I may own at the
      time of my death, without appraisal, court approval, or the
      giving of bond. I also authorize by Executor to employ, at my
      Estate’s expense, professional persons to help in the
      administration of my Estate, including, but not limited to a
      real estate broker.

      The district court construed paragraph V to provide the Lewises an

unqualified first right to purchase the eighty acres within four months of

Ralph’s death.   The beneficiaries contend paragraph V only offers the

Lewises the first right to purchase, in the event the executor, Marjorie,

elected to sell the eighty acres within four months after Ralph’s death.

      A. Principles of Will Construction.          Our principles of will

construction are long-settled:

      (1) the intent of the testator is the polestar and must prevail;
      (2) this intent, however, must be derived from (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;
      (3) we resort to technical rules or canons of construction
      only when the will is ambiguous or conflicting or the
      testator’s intent is uncertain. In determining intent, the
      question is not what the testator meant to say, but rather
      what is the meaning of what the testator did say.

In re Estate of Rogers, 473 N.W.2d 36, 39 (Iowa 1991) (citation omitted).

The instrument should be considered as a whole, giving each part

meaning and effect. Elkader Prod. Credit Ass’n v. Eulberg, 251 N.W.2d

234, 237–38 (Iowa 1977). The court considers extrinsic evidence only if

there is an ambiguity, and extrinsic evidence cannot vary, contradict, or

add to the will’s terms. Rogers, 473 N.W.2d at 39.
                                      17

      B. Will Language and Distribution Scheme.

      1. Qualified or unqualified option.       The will provisions, taken

together, provide Marjorie “a life estate in all [of Ralph’s] real estate,” the

Lewises “the first right of purchase” to the eighty acres “at the appraised

value . . . for a period of four months” from Ralph’s death, and vests the

executor, Marjorie, “the authority to sell and turn into cash any property

. . . without appraisal, court approval, or the giving of bond.”

      The beneficiaries stress this language vests the Lewises with a

contingent first purchase option in the event Marjorie elects to sell the

eighty acres within four months of Ralph’s death. This construction is

problematic.

      First, there is no conditional language in paragraph V. It states, “I

herein give [the Lewises] the first right of purchase.” Our case law has

found conditional purchase options when express conditional language

was used to qualify a right of first purchase.        See Noel v. Uthe, 184

N.W.2d 686, 689 (Iowa 1971) (finding farm tenant did not have right of

first purchase after the will was probated because it provided the renter a

right of first purchase “in the event my Executor shall determine that any

real estate . . . shall be sold”). The beneficiaries’ advocated construction

is essentially a “right of first refusal”—where the Lewises would be given

the right to buy the land in the event Marjorie intended to sell.          But

Ralph’s will contains a first right of purchase, not a right of first refusal.

Paragraph V later refers to the purchase option as “[t]his right to

purchase shall be given them for a period of four months.”                This

language is again unqualified. Giving the beneficiaries their advocated

construction would be rewriting the language of paragraph V to give the

Lewises a “right of first refusal.”
                                       18

      Second, if the beneficiaries’ construction is adopted, there is a

conflict between Lewises’ first option to purchase the eighty acres at “the

appraised value” and Marjorie’s authority to sell “any property . . .

without appraisal.”    If Marjorie had to contemplate selling the eighty

acres in order to trigger the Lewises’ option, then the provisions are

contradictory as to whether Marjorie must sell the land to the Lewises at

the “appraised value” or can sell the property “without appraisal.” These

provisions, however, are entirely consistent if the Lewises’ option is

viewed as an unqualified specific bequest, and Marjorie’s authorization to

sell property is viewed as a general authorization of authority. See Iowa

Code § 633.436 (specific devisees take precedence over general or

residuary devisees in abatement).       Under this approach, Paragraph V

would provide the Lewises’ with an unqualified right to purchase the

eighty acres “at the appraised value” within four months. In the event

the Lewises decline, Paragraph VII authorizes Marjorie to sell the eighty

acres at any subsequent date without another appraisal or without

regard to appraised value.     Construing Paragraph V as an unqualified

option to purchase therefore gives effect to all the will provisions.

      2. Paragraphs II and V. The beneficiaries contend Paragraphs II

and V create ambiguity.         These provisions, however, are entirely

consistent with construing the will to providing the Lewises an

unqualified right of first purchase.

      Paragraph II provides Marjorie a life estate in all real property

Ralph owned. At Ralph’s death, he owned the eighty-acre farm and their

lot and home in Aurelia.       Paragraph V then offers the Lewises the

purchase option for eighty acres. There is nothing facially inconsistent

with these provisions.    In re Estate of Hansen, 264 N.W.2d 746 (Iowa

1978), held a testator’s devise to his children to share equally “personal,
                                            19

Real estate, Stocks, and Bonds” was not in conflict with a subsequent

devise in his will for his son to have an option to purchase eighty acres.

Hansen, 264 N.W.2d at 747–49. Ralph’s will has a nearly identical set-

up. Paragraph II provides Marjorie a life estate in all of his real estate

and then Paragraph V gives the Lewises an option to purchase a specific

piece of real estate.         This specific purchase option simply places a

specific condition into Paragraph II’s general devise to Marjorie.                     The

paragraphs do not create ambiguity nor undermine our conclusion the

will provides the Lewises an unqualified right to purchase Ralph’s eighty

acres.

         C. Extrinsic Evidence and Circumstances Surrounding Will.

Both parties point to extrinsic evidence that favors their construction.3

Irrespective of our conclusion as to whether the will’s plain language is

ambiguous, the extrinsic evidence does little to resolve this dispute.

         The beneficiaries point to Hankens’ testimony and his actions in

probate as evidencing Ralph intended to give the Lewises only a qualified

right to purchase.        Hankens testified he did not send the Lewises a

probate notice because Marjorie was not intending to sell the acreage,

and he believed Paragraph V only provided the Lewises a purchase
option in the event Marjorie elected to sell. The Lewises testified about

their “close relationship” with Ralph and Marjorie during the years

leading up to Ralph’s will execution. The credibility of the testimony is

questionable, as each party is interested in the outcome—Hankens is


         3Thebeneficiaries argue the district court erred in finding the will language plain
and then also considering some “other circumstances” such as the Lewises’ close
relationship with Ralph. Whatever the merits of the district court’s analysis, on our de
novo review we are not reviewing the district court for error, but instead performing our
own independent construction. If we find ambiguity, then we consider extrinsic
evidence and give it whatever weight we deem appropriate. If we do not find an
ambiguity, then we do not consider the extrinsic evidence.
                                    20

facing a tort suit for improperly probating Ralph’s will, and the Lewises

will be able to purchase eighty farm acres at below market value if they

prevail in the lawsuit.

      D. The Will Vests Lewises with an Unqualified Purchase

Option. The extrinsic evidence is contradictory and does not affect the

construction of the language of the will. The will is unambiguous, and

the will’s plain language provides the Lewises an unqualified first option

to purchase Ralph’s eighty acres because (1) the will contains no

conditional language, and (2) such a construction gives effect to all

provisions of the will and reconciles Paragraphs V and VII. To accept the

beneficiaries’   construction   would   create   an   irreconcilable   conflict

between the provisions of the will. We find the will provides the Lewises

an unqualified first right to purchase Ralph’s eighty acres.

      VI. Acreage Purchase Price.

      The beneficiaries finally contend the district court erred by setting

the purchase price of Ralph’s eighty acres at the 1999 appraisal value,

and not the land’s appraisal value when the Pearsons contracted to

purchase the land in 2008. The beneficiaries claim awarding the Lewises

a right to purchase the eighty acres at the 1999 appraised value,

unjustly enriches the Lewises as it provides them, not the beneficiaries,

with the farmland’s increased value over the last decade.

      Unjust enrichment is a doctrine that “evolved from the most basic

legal concept of preventing injustice.”     State ex rel. Palmer v. Unisys

Corp., 637 N.W.2d 142, 149 (Iowa 2001).          For nearly a decade, the

executor, her attorney, and the beneficiaries failed to notify the Lewises

that Ralph’s will specifically provided them a first right to purchase his

eighty farmland acres within four months of his death.         Only through

this silence did the beneficiaries gain title to Ralph’s eighty acres. The
                                   21

beneficiaries now seek to invoke an equitable doctrine to seize a decade’s

worth of appreciation which was only procured through the failure to

address the purchase option during Ralph’s probate.      Equities do not

favor the beneficiaries, and equity entitles the Lewises to specific

performance of the “the first right to purchase” the eighty acres “at the

appraised value in the Estate” which is $140,600.        See Simpson v.

Bostwick, 248 Iowa 238, 244, 80 N.W.2d 339, 343 (1957) (noting specific

performance is an equitable remedy and “once equity has obtained

jurisdiction of a controversy, it will determine all questions . . . to

accomplish full and complete justice between the parties”); see also

Whalen v. Connelly, 621 N.W.2d 681, 686–87 (Iowa 2001) (party who

wrongfully delayed transfer of stock certificates bore risk of loss from

change in value). The district court properly determined the purchase

price to be $140,600, the appraised value of the eighty acres at the time

of Ralph’s death.

      VII. Disposition.

      The district court did not abuse its discretion in reopening the

estate to determine whether the Lewises possessed a valid option to

purchase Ralph’s eighty acres. The Lewises’ first right to purchase was

not addressed during the probate of Ralph’s estate. Ralph’s executor was

required to provide notice to the Lewises so that the estate could be

properly administered. Allowing the Lewises an opportunity to exercise

this option during the probate of Ralph’s estate was a “necessary act,”

and equity regards this case as a “proper circumstance” to reopen the

estate. On our de novo review, we find the will to be unambiguous and

logically construed to provide the Lewises an unqualified option to

purchase the eighty acres at the appraised value at Ralph’s death.

Rewording Ralph’s will to provide the Lewises an option for first refusal,
                                    22

rather than an option to purchase, as advocated by the beneficiaries,

would be a misuse of this court’s equitable powers. This court does not

have the power to rewrite a living testator’s will, nor do we have the

power to rewrite a decedent’s. Accordingly, the decision of the court of

appeals is vacated, and the district court order is affirmed.

      COURT OF APPEALS DECISION VACATED; DISTRICT COURT

JUDGMENT AFFIRMED.

      All justices concur except Mansfield, J., who takes no part.
