161 Iowa 257 | Iowa | 1913
There is no substantial dispute of fact
between the parties. The accounting rendered by the defendant in his pleading was accepted by the plaintiff as correct. The controversy between the parties arises over the construí
The remaining one-fifth (%) of my estate I direct shall be placed in the hands of a trustee and so invested as to produce an income, and that so much of this income as shall be needed shall be used for the comfort and support of my son, Sewall N. Farwell, to be paid to him in weekly or monthly installments, as I have sorrowfully come to the conclusion that he will never have the capacity to take care of property and earn his own living. Should he marry and have lineal issue I direct that upon his death this one-fifth of my estate with its accretions, if any, shall become the property of the said lineal issue of Sewall N. Farwell subject to all the safeguards which the law affords. In ease of the death of Sewall N. Farwell without having lineal issue, I direct that the one-fifth of my*260 estate set apart for his use shall be divided as provided in the provisions of this will for the four-fifths of my estate, and is bequeathed to my other children and their lineal descendants. I hereby appoint Henry M. Carpenter executor of this will and trustee of that portion of the estate allotted to the use of Sewall N. Farwell and request that no bonds be required of him for the faithful performance of his duties.
In May, 1908, the testator wrote the following memorandum and placed the same with his private papers, where it was found after his death: “May 1st, 1908. I have made the accompanying deed with the view that if my death should occur while my property is in its present condition there being no other real estate, that if all parties are agreed and will consent to the same there will be no necessity of having my will probated. I think Sewall would consent to have Henry act for him as trustee with power of attorney, and I see no other complications in the way.”
In January, 1909, he wrote the following letter to the plaintiff, who then resided in another state: “Monticello, Iowa, Jan. 7, 1909. My Dear Sewall: You know I am far from well and my physical infirmities admonish me that I have a frail hold upon life. When I pass away there will be some property for the children and I have made Henry executor of my will and I hope you will leave it entirely in his hands, as he will be able to do better with it than you can possibly do for yourself. Affectionately, S. S. Farwell.”
On September 24, 1904, the existing beneficiarles (being two sons and three daughters) executed a written agreement, the material part of which was as follows:
Exhibit B: Monticello, Iowa, September 24, 1909. Whereas, Sewall S. Farwell, who departed this life on September 21, 1909, left a last will bearing date of April 5th, 1899, by the terms of which his estate was to be equally divided among all his five children (that is, one-fifth each to Mary F. Carpenter, Luna F. Templeton, Marcus Z. Farwell, Zelma F. Smith and Sewall N. Farwell, the share of said Sewall N. Far-well to be held by H. M, Carpenter as trustee); and whereas,*261 said Sewall S. Farwell under date of May 1, 1908, made a written statement and request that, ‘ If all parties are agreed and will consent to the same, there will be no necessity of having my will probated,’ and we are confident that no debts, other than expenses connected with last sickness and funeral, are in existence against said Sewall S. Farwell; and whereas, all of said five heirs fully approve of and agree to said request not to have said will probated, believing that it will expedite the settlement of the estate of said Sewell S. Farwell and in every way be to the best interests of all concerned; Now, therefore, it is hereby agreed by and between all of said five heirs, together with the husbands of the three daughters who are married, and the wife of the said Marcus Z. Farwell (said Sewall N. Farwell being unmarried), that said will be not probated, but that as promptly as possible and within a reasonable time Henry M. Carpenter, named in said will as executor, do make distribution of said estate as said will provides ; that is, one-fifth to each one of said five children. Said Carpenter is to at once make distribution of the two hundred seven shares of Montieello State Bank stock held by said Sewall S. Farwell by taking up the stock certificate now held by his estate and issuing to each of said five heirs their proportionate share thereof (that is, to each of said five heirs forty-one shares), which would leave two shares still remaining in said estate. These two shares are to be disposed of as soon as practical by said Carpenter at not less than three hundred dollars per ¿hare, and the proceeds thereof credited in said Farwell estate for distribution among the five heirs with other accumulations that may come to said estate by maturing certificates or payments on outstanding securities. Mary F. Carpenter, Luna F. Templeton, Marcus Z. Farwell, Zelma F. Smith, Sewall N. Farwell, H. M. Carpenter, Edw. Templeton, Elizabeth C. Farwell, 'Win. Skelton A. Smith.
The foregoing beneficiaries, other than the plaintiff, were married, and.the above names include the husbands of the daughters and the wife of the married son. On the same day the plaintiff executed the following:
Montieello, Iowa, September 24th, 1909. Whereas, the will of my father, Sewall S. Farwell, late deceased, had the following provision, especially referring to my share in his*262 estate, (that is, ‘The remaining one-fifth of my estate I direct shall be placed in the hands of a trustee and so invested as to produce an income, and that so much of this income as shall be needed shall be used for the comfort and support of my son, Sewall N. Farwell, to be paid to him in weekly or monthly installments, as I have sorrowfully come to the conclusion that he will never have the capacity to take care of property and earn his own living’), and whereas, said will further provided that Henry M. Carpenter be appointed as the executor and also as trustee of that portion of the estate allotted to my use; and whereas, my said -father left with his will a memoranda, under date of May 1, 1908, in which he stated that if practicable it would be his wish to have his estate settled without formal probate of his will, and also stated in said memoranda, !I think Sewall would consent to have Henry act for him as trustee with power of attorney’; I fully approve of the provisions of the said will with reference to myself and also the request in the memoranda of May 1, 1908, referred to, and now ask and desire that said Henry M. Carpenter do act as trustee for my share of said estate, distributing such portion of the income of my share to me from time to time as my necessities require. To further enable said Henry M. Carpenter to carry out the provisions of said will with reference to myself, and to better enable him to transact any business in connection with said trusteeship, I have this day executed in his favor my power of attorney fully authorizing and empowering him to do all things with my property that I could myself do. It is .understood by me that said Carpenter is to make reports to me at reasonable periods showing the condition of the property he holds for me as trustee. Sewall N.' Farwell.
At the same time he executed a separate and formal power of attorney. This is the power of attorney which he after-wards purported to revoke.
The contention of appellant is that the effect of the foregoing written agreements was to supersede the will and to render it nugatory. He contends further that the limitations contained therein upon his ownership of the one-fifth share of the estate were thereby eliminated and that he took his title under the written agreements and as an heir of his father
On the other hand, it is the contention of appellee that the written instruments referred to were entered into, not in hostility to the will, but in obedience thereto, and that the manifest purpose and purport thereof was to fulfill the provisions of the will voluntarily and without the aid or compulsion of judicial proceedings, and that the provisions of the will therefore necessarily became a part of such instruments. Both parties concede that the written memorandum of request by the testator furnished the suggestion for the course pursued. On the part of appellant, however, it is contended that this request on the part of the testator was a revocation of his will, subject, perhaps, to the written consent of his children. While the appellee contends that such written request contemplated a voluntary execution of the provisions of the will without the formality of probate. We are clear that the contention of appellee must be sustained. The instruments signed by the parties specifically recognized the provisions of the will and the validity thereof. The legal validity of the will was not questioned then nor is it questioned now. No fraud or incapacity is charged in the execution of the subsequent instruments. The parties could not set aside such will by mere agreement, if they would. They could by such agreement bind and estop themselves. They could thereby
We think, therefore, that the only fair construction which can be put upon the written instruments of the parties is that they were intended to be in harmony with the will and to carryout the provisions of the will as far as it was in their power to do so as the only beneficiaries now in existence. The nature of the title to the trust estate is not dissimilar in its main aspects to that involved in Birdsall v. Birdsall, 157 Iowa, 363.
There is a suggestion in the argument of his counsel that he was in some way misled or overreached. The petition tenders no issue of that kind; nor was there any evidence directed to the support of such a suggestion, and we must therefore wholly disregard it.
*266 Montieello, Iowa, Sept. 24,1909. Luna F. Templeton and Edward Templeton, City — Dear Sister and Brother: Deferring to a deed executed by Sewall S. Farwell, under date of May 1, 1908, conveying to Luna F. Templeton property in Montieello, known as the Farwell home, and the memoranda left with said deed under same date, wherein your father apparently indicated his intention that in consideration of the delivery of said deed you pay to each of the other heirs the sum of five hundred dollars each, we wish to say and formally give expression to the thought that we thoroughly and unqualifiedly believe that it was the full intention of said Sewall S. Farwell, our father, for the last three months or more of his life, to convey said home property to you without charge or payment of any sum whatever. We further believe that had it not been for the very serious illness and partial incapacity of body and mind of our said father during the last three months or more, he would have conveyed said property to you outright and without any reservations or provisions. We all of us distinctly recognize the great service you have rendered Father Farwell in providing him with a home for these many years, and giving to him the loving care and comforts of a home that he could not otherwise well have had. It is justly and equitably your due, and we emphatically insist that you have, without payment of anything whatsoever, said home property conveyed by said deed, together with all of the furniture and other property of said Farwell therein, excepting some boobs, papers, and relics, otherwise disposed of by will.
The instrument carries its own explanation. It was a waiver by the signing parties of all claim upon Mrs. Templeton under the provisions of a codicil of the will in their favor. It is not claimed by appellant that this agreement was invalid as against the parties thereto. On the contrary, it is contended that it was and is valid in that it was a part of the consideration of the 'one transaction between the parties. It is urged, however, by way of argument that this instrument dispenses with or waives certain provisions of the will, and to this extent indicated an intent to set aside the will. It is further argued that, if the appellant has only a life use of the share of the estate which was set apart for his
We think that the trial court reached a correct conclusion, and its decree is therefore Affirmed.