231 N.W. 334 | Iowa | 1930
I.J.C. Cook died testate in Kossuth County on the 6th day of June, 1920. By his will, he devised certain property to trustees, to be managed by them for a time, the income derived therefrom to go to his daughter, Mabel Lonergan, so long as 1. WILLS: she should live. At her death, the property was rights and to go to his brother, George Cook, and George liabilities Cook's children then living, and to the two of devisees daughters of George's sister Mary. Mabel and Lonergan died prior to August 23, 1924. The legatees: devisees or persons entitled to share in the contract to estate at her death were George Cook, Adam Cook, relinquish Edward Cook, John Cook, and Mary La Fountaine, part of the four last named being the children of George devise: Cook then living. Cathryn Hipsher, one of the considera- daughters of George Cook, predeceased her tion: father, leaving as her sole heirs at law sufficiency. Lillian, Nialet, Cathryn, and George Hipsher, named as interveners in this case. All are minors, and are represented by their father, Herbert Hipsher, as guardian.
On August 23, 1924, the four surviving children of George Cook made and entered into the following agreement in writing, which is also signed by Herbert Hipsher:
"Know All Men By These Presents: That we, Ed. Cook, Adam Cook, John Cook and Mary La Fountaine, being all the living children of George Cook (brother of Hon. John C. Cook, late of Algona, Iowa,) do hereby agree between and among ourselves that:
"Whereas, our sister, Cathryn Hipsher, did depart this life before the death of our cousin, Mabel C. Lonergan, late of Algona, Iowa, and under the peculiar wording of the will of our uncle, Hon. John C. Cook, because she predeceased our cousin Mabel, would not share and her children would not share in the estate of our said uncle; and believing that it was the wish and desire that the children of our sister, Cathryn, should share in his estate as expressed to us by our said uncle, the Hon. John C. Cook,
"Now, therefore, we the undersigned do hereby agree that we will divide whatever property we may receive from the trustees, *499 or estate of our said uncle, Hon. John C. Cook, into five equal parts, instead of four equal parts, and that the one-fifth equal part shall go to the children of our said sister, Cathryn Hipsher.
"The consideration for this agreement is to save complication growing out of the settlement of said estate, and the honest belief that it was the real wish of our said deceased uncle, and that Herbert Hipsher, husband of our late sister, Cathryn, will lend his services and good offices towards the prompt settlement and just settlement of the estate of our said uncle."
Herbert Hipsher, as guardian, appeared in this action, which is an action in partition, and filed a petition in intervention, setting up and alleging that his wards, the children of Cathryn Hipsher, are, by reason of the foregoing contract, possessed of an interest in the property described in the petition, and prayed that such interest be confirmed and established by the court. A motion to strike the petition in intervention was overruled by the court. In due time, Adam Cook, one of the parties to the contract above referred to, intervened, alleging the same matters as were alleged in the petition of Herbert Hipsher, and asking specific performance of the contract as against his co-makers, and also that the designated interest of the Hipsher children be established in the land in accordance with the terms of the contract. The remaining parties to the contract answered the petition in intervention of Adam Cook, and alleged that the contract therein referred to was void for want of consideration. A reply filed in behalf of all interveners joined issue on the affirmative allegations of the answer. The court found in favor of the interveners, and a decree was entered accordingly. The major controversy, therefore, on this appeal involves only the asserted claims of the interveners.
First, it is contended by appellants that the contract specifically and in terms recites a consideration agreed upon by the parties; that such consideration is conclusive, and that no other may be shown; that the assumed consideration is neither a valid nor a legal one; and that the instrument amounts to nothing more than a written promise on the part of the children of George Cook to make a gift to the children of Herbert Hipsher, and is, therefore, wholly invalid and unenforcible. *500
All parties concede that interveners have no interest in the property involved unless an interest is given them by the writing in question. The consideration which appellant contends is specifically recited in the contract is contained in the last paragraph thereof. The trial court held that the recitals of this paragraph are more in the nature of the expression of the motives which prompted the execution of the contract than a formal statement of an agreed consideration.
Motive and consideration are not identical. The expectation of a definite result is often the motive which prompts the execution of a contract. Such expectation is not, however, binding. Ordinarily, consideration is the price paid for the undertaking of the promisor, but it may be for the benefit of a third party. Under the provisions of Section 9440, Code, 1927:
"All contracts in writing, signed by the party to be bound or by his authorized agent or attorney, shall import a consideration."
Unless, therefore, the consideration is clearly and definitely expressed in the contract, as contended by appellant, the writing itself imports a consideration, and, in addition thereto, there are the mutual promises of the parties to 2. CONTRACTS: forbear, forego, or relinquish a certain share requisites or portion of their interest in the estate for and the benefit of interveners. The rule that, where validity: the consideration expressed in the contract is considera- in itself a promise, and therefore contractual, tion: it cannot generally be varied by parol, is of benefit to practically universal application. Gelpcke,
third Winslow Co. v. Blake,
What appellant regards as the agreed consideration would seem to be only a recognition of that which the parties believed was the wish of the testator, — a recital of the inducement on *501
their part to enter into the contract, the expression of what they felt as a moral obligation. This, we think, clearly was the motive that prompted the execution of the contract, and must be distinguished from the consideration. We are inclined to accept the view of the trial court at this point. Mutual promises which operate to the advantage of one or to the detriment of the other constitute a good consideration for a contract. Daily v. Minnick,
It is true that the written contract does not, in terms, convey an undivided one fifth of the share of the parties thereto to interveners, but there is a mutual expression of desire and of an intention to benefit them to the extent indicated.
It is provided by statute, Section 10968 of the Code of 1927, that a person, although not named therein, for whose benefit a contract is made, may sue thereon. The mutual agreement to forbear to claim and to relinquish a certain definite interest in the estate in question was a detriment to the parties to the contract and an advantage to interveners, for whose benefit the contract was entered into. The principle involved in this case is much like that recognized and applied in Harlan v. Harlan,
II. Referees were appointed by the court to make partition of the land. The referees reported in favor of setting off the interest of Adam and George Cook in kind, and that the balance of the land be sold and the proceeds divided. This, 3. PARTITION: it is contended, is without authority, and action for wholly inequitable and unjust; that the balance partition: of the tract, which comprises something over 400 proceedings: acres, cannot be sold as advantageously as the partition in whole tract; and, therefore, that appellants and kind (?) or the other parties entitled to share in the by sale (?) estate are prejudiced by this arrangement.
This question was before us in Todd v. Stewart,
It follows that the decree confirming the report of the referees and permitting a partition of the land partly in kind cannot be sustained. The decree must be so modified as to provide that the land be all divided in kind or that it all be sold and the proceeds divided. — Modified and affirmed.
MORLING, C.J., and EVANS, De GRAFF, KINDIG, and WAGNER, JJ., concur.
FAVILLE, J., took no part.
*503ALBERT, J., dissents.
