148 Iowa 352 | Iowa | 1910
Plaintiff is the only child of J. A. Sherman, a physician of Cherokee, who died testate October 10, 1899. The defendant was the second wife of deceased, having been married to him January 1, 1889, and was childless. She had been married previously and had an adopted daughter, Mae Williams, who died, after she had married, leaving a ,son. The will of deceased directed: (1) The payment of the debts and funeral expenses; (2) bequeathed his personal property to his wife “for her use and benefit during her lifetime, giving to my said wife full control over said property;” (3) devised all his real estate to his wife, “together with the hereditaments and appurtenances thereto belonging or in any wise appertaining to have and to hold to my wife, Carrie Sherman, during her lifetime with full power to control the same during her lifetime as though this was an absolute bequest;” (4) recited that he had set aside a life insurance policy of $1,000 to his daughter, Anna Sherman, to be used in the completion of her education; and (5) directéd that “all of my property, both real and personal, of whatever kind or character or nature, that remain at the time of the death of my wife, Carrie Sherman, be equally divided between my daughter, Anna Sherman, and my stepdaughter, Mae Williams, share and share alike.” It nominated the
©n the other hand, the defendant testified that on meeting the attorney on the street he had inquired- how she was coming on, to which she replied that bills were coming in faster than funds to meet them, and asked if there was any way out of this; that he' remarked that there was just one way, and that was f-or the girls to sign to her; that she said Mae would do as she wished, but she did not know about plaintiff; that the attorney replied that he would talk with them; and that the next she knew he brought the papers to the house and they signed them; that she made no explanation or promise to them; that the attorney merely asked if they were ready to sign, and, responding that they were, they signed the bill of -sale and deed; that she was surprised at it being done so quickly and had no part therein save as stated; and that the matter of willing the property was not mentioned..- On cross-examination, in answer to an inquiry as to whether the witness ever told plaintiff she would make a will in her favor she responded: “No, not exactly; but I have always thought I might.” Being reminded that the inquiry was for what she said, not thought, she again answered: “No,
Such is the record before us — the testimony of plaintiff simple, direct and natural; that of defendant evasive and unreasonable, and, if true, discreditable alike to herself and attorney. The stepdaughter, without some inducement or representation, would not have been likely voluntarily to part with all the property she had. No reputable lawyer would be a party to the procurement without consideration from a girl under twenty years of age, without business experience, bereaved by the recent death of her father, of the bounty he had bestowed upon her — all she had. No woman, actuated by proper motives, standing in loco parentis, would allow her stepdaughter thus to divest herself of all the property'to which she was entitled under the will even though this might enable her to appropriate it to her own use. We prefer a finding consistent with fair dealing on the part of the attorney whom death has silenced, and with an honest purpose on the part of the defendant, especially when supported by convincing evidence. From a separate examination, of the record, we have become
The deed and bill of sale recited the consideration as one dollar with love and affection. Appellee contends that extrinsic evidence was not admissible to prove the additional consideration as alleged. That ^ ru2e jg otherwise sufficiently appears from Lawton v. Buckingham, 15 Iowa, 22; Puttman v. Haltey, 24 Iowa, 425; Trayer v. Reeder, 45 Iowa, 272; Bossingham v. Syck, 118 Iowa, 192; Allen v. Rees, 136 Iowa, 423.
In Carmichael v. Carmichael, 72 Mich. 76 (40 N. W. 173, 1 L. R. A. 596, 16 Am. St. Rep. 528), a conveyance to a third person was set aside and a decree directed to be entered such as would prevent the party promising to make the will from violating the agreement. In Duvale v. Duvale, 54 N. J. Eq. 581 (35 Atl. 750), a wife, who, on ample consideration, had promised to execute a will of certain property to her husband, repudiated the agreement, and in a suit to protect the husband’s rights the vice chancellor said: “While it is true that a promise to make a certain will is not broken until the death of the promisor, and it is true that actions in which such promises have been enforced have been in cases occurring after the death of the promisor, yet I do not see why the court can not, upon the principle of quia timet, fix upon the property a liability to answer the promise, in any case where the promisor has, during life, repudiated its terms, and attempted to make other disposition of the property. This Mrs. Duvale has done, and now, by her answer, claims the absolute right to do. Chancellor Williamson recognized the right of the promisee to protection upon the principle of quia timet in the case of Vanduyne v. Vreeland, supra, (12 N. J. Eq. 142). Vreeland and wife had adopted a child under a promise that all the property they had should at his death go to the child. Before his death, Vreeland sold the property for the purpose of cutting out the right of the adopted child to a purchaser who had notice of such rights. Al
Contracts which contemplate the conveyance of estates in remainder or the devise thereof have frequently been enforced by the courts, upon the denial of such obligation. Thus, in Reilly v. Reilly, 135 Iowa, 440, two boys were induced to live with and work for the owner of forty acres of land on the promise that they should have the farm after the owner’s death, and, upon denial of all obligation to perform and performance by the boys, they were held entitled to a decree conveying the forty acres subject to the homestead rights of the owners. In the case at bar, defendant not only denied the making of the agreement, blit expressed her intention not to leave plaintiff any property derived from the estate of decedent. Having thus' repudiated her agreement, plaintiff was not required to incur the risk of being unable to establish the contract after her death nor of the property being put beyond reach. Her interest in the property was such as
Reversed and remanded.