Clark v. Evarts, 46 Iowa 248

Clark v. Evarts

46 Iowa 248 | Iowa | 1877

Day, Oh. J.

The finding of the referee that the deeds were never delivered to H. Crandall is abundantly sustained by the testimony. The evidence shows that at the time of the execution of the deeds Ehoda and JEL Crandall were aged and very infirm. The deeds were executed to the end that H. Crandall might have some means of support if he should survive his wife, and they were retained in the possession of Ehoda Crandall, in her private bureau drawer, with the understanding that if she survived her husband she was to destroy them. At the time of the death of her husband she was very infirm in body and feeble in mind, and she survived her hus*250band less than one month. There is no satisfactory evidence that there was any change of the original intention under which the deeds were executed. Upon the contrary, the weight of the evidence shows that this intention continued till the death of II. Crandall. Immediately after the death of H. Crandall, the defendant, H. A. Evarts, took the deeds from the private drawer of Rhoda, and procured them to be recorded. We are satisfied that they were never delivered, and that no interest in the property in controversy passed to the defendants under the will.

1. evidence: declarations in presence of deceased person. II. The testimony of Carrie M. and H. A. Evarts as to the contract set up in their answer was inadmissible under section 3639, and was not considered by the referee. The . , . , , , , ,, deeds never having been delivered toil. Crandall, . . ° . his declarations as to the contract, simply as declarations, are not admissible against Rhoda Crandall. But liis declarations made in the presence of Rhoda, and acquiesced in by her by positive assent or conduct indicating such assent, are admissible. These declarations, taken in connection with other declarations and conduct of Rhoda herself, are sufficient to prove that'the contract set up by defendants was made with the knowledge, concurrence and acquiescence of Rhoda. Having received the benefits of such contract, with full knowledge of its terms, she and her heirs are now estopped to repudiate it, so far as the property not embraced in the homestead is concerned.

2.HOMESTEAD: parol contract: bus-band and wife. III. In Barnett v. Mendenhall, 12 Iowa, 296, it was held that an agreement to convey the homestead is of no validity, when it is not by a joint instrument in writing -i . -i, , , , -, , concurred m and signed bv both husband and ° - wife. Code, Sec. 1990. As both husband and wife were living at the time the contract set out in the answer was made, it follows that, being in parol, it is void so far as the homestead is concerned. It is claimed, however, that Rhoda Crandall, by receiving the benefits of the contract after her husband’s death, ratified and confirmed it, or rather that she was in the position of a sole owner having made a contract for the sale of the homestead in parol, which’ the statute *251does not prohibit. Rut the evidence shows that Rhoda survived her husband only about four weeks; that she was in very feeble health at the time of her husband’s death, and that she desired to be taken elsewhere, but was unable to be removed. Under such circumstances, by merely remaining with and being cared for by defendants, it will not be presumed that she made a new contract for the disposition of the homestead.

On both appeals the judgment is

Aeeirmbd.