In the Matter of the Estate of Ralph Roethler, Kent Lewis and Becky Lewis v. 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 , 801 N.W.2d 833 ( 2011 )


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  •               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.