181 Iowa 379 | Iowa | 1917
The essential controversy seems to be oyer whether a trust fund provided for this judgment debtor^was in fact purchased by him or obtained with consideration flowing from him, and whether, as to the recital in the trust agreement that it was upon a consideration, this plaintiff is in position to object to having such recital varied by oral testimony that there was in fact no consideration.
We have no occasion to decide whether Frank gave consideration for the trust of which he is the beneficiary, were it the fact that his father, now deceased, created the trust. His father did not create it. The most there is for so claiming is hearsay testimony to the effect that the father desired the making of such a trust, and that his widow, the stepmother of Frank, made the trust in suit out of deference to the wishes of the father. The question is what, if any, consideration Frank furnished for what he gets by the trust; whether he did not, in effect, buy this, and so place the case within the class which pro-' hibits a debtor from trusteeing his ownT?
The trust agreement was signecfoy the widow, by Frank, and by Read, the trustee. There is testimony given by others than the widow that she desired no consideration, and that, in the negotiations, no consideration from or surrender of property by Frank was mentioned. We gather that, on September 11, 1911, when the paper was
Cleared of. these various considerations, we reach inquiry into whether the trust rests, in whole or in part, upon a relinquishment on the part of Frank of a substantial right to object to the will of his father, and whether the trust is supported by being a step in a' general family settlement.
II. The wdll contained a provision that, if any one or more of the heirs or legatees shall attempt to break the will, then bequests made therein to such legatee or legatees shall be cancelled, “and they shall have none of said bequests and no property whatever from my estate, but the distributive share alike among my other legatees under this will.” The son Ed. did institute what is a contest (Moran v. Moran, 144 Iowa 451), alleging that the will was obtained by undue influence of the widow, and that the deceased was of unsound mind. It is true Frank was not, eo nomine, a party to this contest, but that is not quite decisive of the present point. Time was given to file objections to the will. The widow applied to be made special administratrix. The day before they were filed, Frank made application to have his brother Ed. made special administrator. . Frank verified the application therefor before the attorney, who asked time.
Unless the contest was won, the penalty clause in the will would cancel a bequest of something like 138 acres
There was much hostility in the settlement, arising from the size of allotment that had been made to the widow. It is in testimony that Read, who, in a way, represented the family, was interested in this matter to stop litigation and to assist the heirs in getting a fair settlement; that in this settlement were discussed all the phases of what had been given the widow in the lifetime and by the will; that finally an adjustment was reached which, it is said, did not include any controversy concerning the trust fund. One item in the settlement was the furnishing of $200 for the care and education of one of Frank’s daughters. This daughter and another received $2,500 in the will, and, in the settlement, additional property worth about $1,500. It seems to be conceded that the settlement made no provision for Frank except as to certain promissory notes which were the property of the estate, did not belong to the widow as an individual, and which were the sole subject of the trust which she afterwards created. There is some evidence in the so-called corrected abstract filed by
¡We incline to agree with the opinion of the trial court that the spendthrift trust was, in effect, a turning over to the trust of property belonging to the estate of Frank’s father, and turned over by the widow, who created the trust; and that a general family settlement, including the abandonment of the contest by any who had the right to institute it, was one of the considerations for the trust. And Frank was one party who had already interested himself in a contest, or ivas likely to do so, and who had the right to institute a contest.
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V.There is a fierce controversy, most elaborately briefed, on whether these recitals may be varied in parol. The utmost effect of these recitals is to prove consideration was furnished. As we find this to be true without these recitals, we do not deem it necessary to determine whether plaintiff is in position to object to parol variance.
[iT follows that the decree below must be — Affirmed.