181 Iowa 578 | Iowa | 1917
“State of Iowa, )
“Winnebago County )
SS‘
“I, J. E. Anderson, being first duly sworn do on oath depose and say that I am personally acquainted with Anna Elizabeth Anderson and Carl O. Anderson, husband .and wife, during their lifetime. That some time during the year 1903 they desired to make their wills, and they consulted me several times in this connection. They were without children, and about forty-five years old. Their property was ostensibly owned by him, but they owned and occupied a farm near Forest City, which was their sole source of in*581 come, and operated it together. Mrs. Anderson came to my office several times, and told me that she and her husband had agreed to will their property so that whoever outlived the other was to acquire the whole, and asked if it could be done that way. Later, Mr. Anderson came in, and told me that they had agreed to make a will which would .give all their property to the one that lived longest. Both told me that they would dispose of their property in this way; that they wanted me to draw np wills in order that this agreement might be effectuated. I was and am an attorney-at-law. They usually came in separately, because one or the other had to stay on the farm, where they lived alone. I think that they came in together once, at least. I had several conversations with both parties. They expressed no desire, intent or agreement that any property was to go to either of their heirs, but said the bequest to the survivor was final.
“Early in July, 1903, I drew up two wills in identical terms, whereby each left all his property to the other. One will was signed by Anna Elizabeth Anderson on July 10th, 1913. I told her it was the will I had prepared in accordance with her instructions and the agreement of her and her husband. She said that was right, and that her husband would come in and sign np soon, but he was sick that day.
“About Aug. 15th, 1903, Mr. Anderson came into the office, asked for and signed the will I had prepared for him. I told him also that it was the will that was drawn to meet the agreement between him and his wife. I prepared two wills because it was difficult for both to come to town at once to sign, because I thought it the simplest and clearest way to express their desire.
“Duly verified.”
The plaintiff objected to the competency and materiality of each and all of the matters shown by the affidavit.
Counsel for appellants contest very vigorously the proposition that the wills were mutual, and especially deny the' correcta) ess of the court’s conclusion that Anna. Elizabeth Anderson died intestate. It is their contention that Mrs. Anderson died testate, and that her will, hereinbefore mentioned, should be given effect according to the statute (Code' Section 3281), which provides that:
“If a devisee die before the testator, his heirs shall inherit the property devised to him, unless from the terms of the will a contrary intent is manifest.”
The argument is addressed to two propositions: First, that the testimony of J. E. Anderson, the scrivener who drew the wills, is inadmissible for any purpose, and constitutes an attempt to amend or change a will, the meaning of which is clear upon its face; and, second, that plaintiffs’ right to the benefit of the devise in the will of the wife is conclusively fixed by the statute above quoted.
I. It may be conceded that extrinsic evidence is inadmissible to vary or change the terms of a will or to make another and different will for the testatoi*, but this does not mean that evidence may not be admitted to show the circumstances which accompanied or attended the making of the instrument, or to identify the papers or writings which in fact constitute the will of the'deceased. Lorieux v. Kel
*584 “These several instruments were executed at the same •time, or as near the same time as could be, and were evidently intended to be parts of the same transaction. * * In the construction of wills, the intention of the testator is the first and great object of the inquiry, and all papers of a testamentary character must be taken and considered together, and therefrom the intention of the testator ascertained. * * Substantially all three of these instruments are one, executed at one and the same time, and might well have been contained in one paper.”
It is true that in that case the court did not pass upon the validity of the joint or mutual will as such, saying that, for the purposes of that case, it was immaterial whether it be valid or invalid, but suggested by way of query an in-' clination to hold it invalid. But that doubt no longer exists, and it is now generally conceded that’such wills are valid, and this is especially true as between husband and wife or other persons occupying relations which imply legal or moral obligation of mtitual support. As between strangers, and in the absence of any such obligation, legal or moral, such a transaction would possibly be held to partake too largely of a mere wager or gambling transaction to command judicial approval; but this is a question which is not found in the present case, and we need not attempt its decision.
In a joint or mutual will for the benefit of the survivor, there is an element which partakes of the nature of contractual obligation. It is one, however, from which either of the parties may recede by a revocation made with notice in the lifetime of the other; but if there be no revocation before the death of one of the parties, the right of the survivor is thereby fixed and determined according to the terms of the mutual will. Much of the confusion and doubt which is liable to arise over cases of this kind is readily removed
That the two wills in this case were intended to be reciprocal can hardly be doubted, unless we are to discard all extrinsic evidence. Probably, since the wills bear different dates, the mere fact that each makes the other spouse the sole beneficiary would not, of itself, be sufficient to indicate any agreement or understanding that the two instruments were to be mutual or reciprocal, for such wills might be executed without either party’s knowing what the other had done in that respect. But we think there is no rule of evidence which excludes proof of facts tending to show that the husband and wife did act each with the knowledge of the other; that the two wills were drawn by
“If evidence of a mutual compact is necessary in such case, that evidence is afforded by what the parties did. We cannot see how the situation would be different if witnesses had testified that they heard this husband and wife discuss what disposition they -would make of their respective estates, and that they agreed with each other that they would make a joint will such as they did make. The fact that they made such will is satisfactory proof to our minds that it was done in accordance with their mutual compact to dispose of their property in this manner.” Frazier v. Patterson, 243 Ill. 80.
To reach this conclusion upon the record before us necessitates no disregard of the rules which require the court to construe a will according to its terms when read as an entirety in the light of the circumstances under which it was executed.
The judgment of the district court is therefore — Affirmed.