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IN THE COURT OF APPEALS OF IOWA No. 1-829 / 11-0656 Filed December 21, 2011

IN THE MATTER OF THE ESTATE OF MINDA K. BABINATE, Deceased, GALE A. GOODVIN, Petitioner-Appellee, vs. PAUL D. DE BEY, Executor-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Woodbury County, Edward A. Jacobson, Judge.

Executor appeals the district court's order distributing estate assets. AFFIRMED.

Daniel D. Dykstra and Joel D. Vos of Heidman Law Firm, Sioux City, for appellant. Ray H. Edgington and Colby M. Lessmann of Vriezelaar, Tigges, Edgington, Bottaro, Boden & Ross, L.L.P., Sioux City, for appellee.

Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.

2 EISENHAUER, J. Minda K. Babinate and her husband Paul executed reciprocal wills in October 1996. Paul predeceased Minda, who died on November 12, 2009. Gail Goodvin is Paul's daughter and Minda's step-daughter. Earl and Paul De Bey are Minda's brothers/heirs at law. Minda's will was admitted into probate. After providing for the payment of her debts, it provides: ARTICLE II All the rest, residue and remainder of my property, personal, real and mixed of every kind and nature, I give, devise and bequeath to my husband, PAUL JAMES BABINATE, to have and to hold as his own. I grant unto my husband the power to sell and convey any and all of the real estate that I may die seized of, and my said husband is to have the use of and the income of all my property subject to administration and burial costs, and during his possession of said property, I hereby direct that he pay all the taxes on said real estate, the upkeep of said real estate including insurance and all expenses in connection with the operation of the real estate. After the death of my said husband, or in the event we die at the same time, I devise and bequeath the remainder of my estate, consisting of all property, both personal and real of every kind and nature to GALE A. GOODVIN. On July 2, 2010, the estate's executor, brother Paul De Bey, filed an application to determine the distribution of the assets. The executor argued the assets must be distributed to Minda's intestate heirs (her siblings) instead of to Goodvin. The executor's application states: 4. Iowa Code section 633.273 [(2009)] is an antilapse statute which generally provides that a bequest to a devisee who predeceases the testator does not lapse if the devisee has surviving issue. However, section 633.274 creates an exception to the antilapse statute and specifically provides that a "devise to [a] spouse of the testator, where the spouse does not survive the testator, shall lapse notwithstanding the provisions of section 633.273, unless from the terms of the will, the intent is clear and explicit to the contrary." [Iowa Code

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