The most important question on this appeal is whether gifts totaling about $88,000 in value, by testatrix in her lifetime, to her three sisters who were made executrices of her will, were in violation of an alleged oral agreement between testatrix and her husband who predeceased her. Following trial to the court in probate it was held such violation was not shown. We affirm the decision.
January 8, 1940, A. W. H. Lenders and Anne, his wife, executed mutual wills. Lenders died in July 1944, his will was probated August 4, his widow was made executrix and accepted the bequest in her favor of substantially the whole estate, valued at about $40,000. 'Anne died February 3, 1947, her will was probated in April and her three sisters were made executrices. The issues here arise from objections to their final report and their answers to the objections. Mrs. Lenders’ estate was appraised at about $540,000. It consists of gifts from her husband in his lifetime or accumulations therefrom and the bequest under her husband’s will.
In four different transactions after her husband’s death Anne (testatrix) gave her three sisters money and property valued at about $88,000. None of it came to her under her husband’s will. It is these gifts the three objectors who are legatees under Anne’s will (Mr. Lenders’ adopted daughter and her two sons) and the temporary executor of her estate allege were made in violation of an oral agreement between Anne and her husband.
Subject to a conditional bequest of $1000 the will of Mr. Lenders provides: “I give * !>i * my wife, Anne W. Lenders, providing she shall survive me, all the rest * * * of the property I may own at the time of my death, or to which I may in any manner be entitled, * * * to be hers absolutely * * If his wife should not survive him, his will leaves the “rest * * * of the property I may own at the time of my death, or to which I may be entitled” to those of thirteen named beneficiaries who survive him, in specified amounts, to be diminished or increased proportionately, depending on the size of his estate.
*1209 The will of Mrs. Lenders leaves her personal effects to her three sisters and provides: “I give * * * to my husband, A. W. H. Lenders, providing he shall survive me, all the rest * * * of the property I may own at the time of my death, or to which I may in any manner be entitled, * * # to be his absolutely.” If her husband should not survive her, her will leaves “the, rest * * * of the property I may own at the time of my death, or to which I may be entitled” to the same 13 beneficiaries named in her husband’s will, in the same proportions.
The proportionate shares going to Anne’s three sisters under her will total slightly less than two fifths (38.8%) of the whole estate, less the personal effects. Thus if Anne had not made the gifts here, under attack the sisters would have taken under her will 38.8% of the net amount thereof.
The gifts from Anne to her sisters for which they, as executrices, are asked to account are these:
1) In August 1944 Anne deposited in a Cedar Rapids bank $25,365 in a joint savings account with her sister Ellen Kanealy. The money was proceeds of life insurance on her husband of which Anne was beneficiary. January 6, 1948, about eleven months after Anne died, Ellen withdrew this deposit, with accrued interest, and divided it among her two sisters and herself.
2) In August and September 1944 Anne deposited in a Chicago bank $21,000 in a joint account with her sister Katherine Kanealy Miles. The money was given her by her deceased husband’s employer, Penick & Ford. Other deposits totaling $35,500 were subsequently added to this account from Anne’s own funds. March 5, 1947, a month after Anne’s death, there was a balance in this account of $9950 which Katherine withdrew as her own. She had also previously made two withdrawals totaling $1822 for herself from this account.
3) Anne elected to leave with Aetna Life Insurance Company $19,437, life insurance on her husband of which she was beneficiary, naming her three sisters as contingent beneficiaries. Anne did not withdraw this money and at her death Aetna paid $19,516 in equal shares to the sisters.
4) In December 1946 Anne gave her sister Katherine (Miles) 400 shares of Penick & Ford stock worth $82 a share. In 1926 her husband had given Anne 6000 shares of this stock.
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I. Appellees-exeeutrices argue tbe remedy for breach of an agreement to make mutual wills is an action for damages for breach of contract or for specific performance and the probate court lacks jurisdiction to grant the relief prayed for by appellants-objectors. It is doubtless true appellants might have sued for breach of contract or for specific performance. In re Estate of Farley,
If we assume, without so deciding, objectors were in error as to the kind of proceeding adopted, this is not ground for dismissal of their objections, but merely for transfer to the proper, docket. Since the executrices made no motion to transfer the proceeding from the probate docket any error as to the form of action adopted was waived. Sections 611.7, 611.9', 611.12, Code, 1954.
We have repeatedly pointed out the district court in this state is only one court. Before it all proceedings come, whether law, equity or probate. If no motion is made to transfer to another docket the district court, sitting in probate, may hear and determine litigation which could or should have been brought at law or in equity. The point the executrices now raise relates at most to a mere procedural irregularity which they waived, and does not go to the court’s jurisdiction. See In re Estate of Allen,
II. Appellants first assert error in the trial court’s ruling Mr. O. N. Elliott was an incompetent witness under section 622.4, C/ode, 1954, which provides in substance, so far as now material, that no one interested in a proceeding may testify to any personal transaction or communication between him and a person deceased, against the executor or survivor of such decedent.
It is clear Mr. Elliott has a direct financial interest in the outcome of the proceeding. Testatrix’ will leaves him $15,000, to be diminished or increased according to the size of the estate. It is equally plain he was examined in regard to personal trans *1211 actions and communications between him and testatrix. Although the executrices are of course parties to the action and Mr. Elliott was examined by objectors, they contend the executrices are not, under the circumstances here, parties who are protected by section 622.4. It is argued the executrices as such are mere nominal parties and the sisters’ claim is as donees of gifts from testatrix.
We are clear the executrices as such are entitled to the protection of the statute and Ellen and Katherine are also protected as survivors of testatrix. The joint bank accounts in controversy were, paid Ellen and Katherine respectively as surviving joint tenants with testatrix. This places them within the protection 622.4 affords a survivor. O’Brien v. Biegger,
We need not determine whether one of the class section 622.4 protects, who is a mere nominal party to an action, may invoke the statute. No holding that he may not do so, where the party is an administrator or executor, has come to our attention. In re Estate of Conner,
In any event, we are agreed the executrices are more than nominal parties to this proceeding. Tt is true, like all executrices, they act in a. representative capacity. But this does not make their interest merely nominal. The prayer of the amended objections to their final report asks that the executrices be ordered to account for all moneys and properties testatrix transferred to her sisters after her husband’s death, that all compensation be denied them and they be required to return all allowances thus far received. Objectors argue they are entitled to such relief and to a holding the executrices conspired together to appropriate moneys and properties which should go to all the legatees.
After referring to similar contentions that 'an executor be required to account to certain beneficiaries of a will, In re
*1212
Estate of Conner, supra, at page 491 of 240 Iowa, page 840 of 36 N.W.2d, states: “These examples make it clear the executor was
not
a mere nominal or formal party to the action but was a real party in interest in his capacity as such.” See also in support of our holding in this division Bell v. Pierschbacher,
TIT. Appellants next assign error in the court’s failure to find, as their objections assert, there was a confidential relation between testatrix and her sister Katherine K. Miles in which the latter was the dominant person, thereby placing upon Katherine the burden to sustain the gifts to her within such decisions as In re Estate of Lundvall,
In urging this contention appellants are faced with a procedural hurdle it is rather difficult to clear. Since the action is in probate it is not reviewable de novo here but only upon the errors assigned. The court’s findings have the force and effect of a jury verdict and, if supported by substantial evidence, will not be disturbed. Rule of Civil Procedure 334; In re Estate of Rorem,
In view of the rule just mentioned we are not justified in disturbing the finding it was not shown- there was a confidential relation between testatrix and Katherine as the dominant person. The burden to prove such relation existed, as alleged by them, rested on appellants. In re Estate of Lundvall, supra,
The only evidence having any tendency to establish the claimed confidential relation is this given by Katherine, whose home was in Chicago, at an earlier hearing before the same judge and offered in the hearing now under review: “I was practically her (Anne’s) secretary. I paid bills for her. We pay taxes in Chicago April 1st and I did that for her. * * * When Mr. Lenders became ill in 1943 I came out. (from Chicago) *1213 and took charge of their house and stayed most of the time until 1947. * * * I was with Mrs. Lenders and took care of Mr. Lenders’ insurance policies when he died.”
In other testimony Katherine insisted in effect she acted pursuant to testatrix’ wishes and instructions. There is no evidence to the contrary. So far as shown, testatrix was in excellent health and full control of her faculties. She had had business experience. We cannot say Katherine was in a confidential relation with and dominated her sister merely because she was “practically her secretary,” paid taxes and other bills for her, took charge of the house and took care of Mr. Lenders’ life insurance. It may well be that testatrix, rather than Katherine, was the dominant person in any relations between these sisters.
IV. Appellants assert error in the court’s holding the evidence fails to show that in making the gifts in question testatrix breached a contract she made with her husband. As indicated at the outset this is the most important question upon this appeal.
Appellants had the burden to prove by clear and satis-, factory evidence the alleged oral agfeement they rely upon. Johansen v. Davenport Bank & Trust Co.,
Aside from the testimony of the incompetent witness Mr. Elliott there is no proof of any oral agreement between testatrix and her husband except such as may be inferred from the wills themselves and the circumstances attending their execution. We may observe that Mr. Elliott’s testimony, if considered, would be of little aid to appellants.
We have held the existence of a contract to make wills may be inferred where it is shown wills containing reciprocal provisions are executed by husband and wife, each with the knowledge of the other, at substantially the same time and at
*1214
their joint request. In re Estate of Johnson,
However, we need not now re-examine our precedents upon this point. We may infer these two wills were made pursuant to an oral agreement between the makers. But the only agreement which may be inferred is that Mr. and Mrs. Lenders were to dispose of their property as provided in the wills. Hale v. Iowa-Des Moines National Bank & Trust Co., supra,
Aside from a minor bequest, each of these wills leaves the surviving spouse the rest “of the property I may own at the time of my death * * * to be hers (or his) absolutely.” If the spouse does not survive, each will leaves the rest “of the property I may own at the time of my death” to those of the named beneficiaries who do survive. No specific property is referred to. 'Neither will attempts to dispose of any property except such as the maker may own at the time of death.
The terms of the wills and the circumstances of their execution afford no evidence of an oral agreement which prevented Mrs. Lenders during her lifetime from making bona fide gifts of her own property to the extent of the gifts under attack. The wills negative the thought testators contracted to dispose of all the property they then owned or might later acquire or in fact any property other than each might own at death.
94 C.J.S., Wills, section 119, says: “Where the contraer covers only what property the promisor may leave at his death *1215 * * *, the promisor remains free to use, control, and dispose of property in his lifetime, and transfers or conveyances by him before his death are valid unless made with intent to defraud, even though no consideration therefor is given. Such ' contracts do not prevent the making of gifts by the promisor in his lifetime provided the gifts are reasonable, absolute, bona fide, not testamentary in effect, and not made for the purpose of defeating the contract or having such effect.”
57 Am. Jur., Wills, section 710, page 479, states: “It may be stated generally that the courts do not consider that the parties to a joint and mutual will intended to restrict either party from disposing of property in good faith by transfers effective during his or her lifetime, unless a plain intention to this effect is expressed in the will or in the contract pursuant to which it was executed. Nothing short of plain and express Avords to that effect in a contract to execute, wills with mutual and reciprocal provisions is sufficient to prevent one of the testators from disposing of his property in good faith during his lifetime, not withstanding the death of the other testator. In general, no such restriction exists where, under the contract and Avill executed pursuant thereto, each testator designates the property to be devised as that belonging to him at the time of his death.”
Much to the same effect is 4 Page on Wills, Lifetime Ed., section 1729.
Upon a preAdous appeal in this same estate, involving primarily another question, we observed “It must be first determined Avhether the two wills were mutual wills and Avhetlier there was a contract restricting the surviving party from disposing of her property during her lifetime. See 57 Am. Jur., Wills, section 710, page 479” (quoted above). Kanealy v. Heiserman,
Powell v. McBlain,
Hatcher v. Sawyer, supra,
68 C.J., Wills, section 204, states the law here applicable as it is expressed in 94 C.J.S., Wills, section 119, quoted above.
Schultz v. Brewer,
Other Iowa decisions which lend support to our conclusion here are Kisor v. Litzenberg,
Ohms v. Church of the Nazarene,
The Ohms ease is analyzed and quoted from with approval in Schultz v. Brewer, supra,
In Austin v. Davis,
Other decisions which support our conclusion are Rastetter v. Hoenninger,
The wills in question were prepared by able counsel of wide experience, a partner of the Lenders own attorney. Mr. and Mrs. Lenders seem to have consulted their lawyer frequently. If they intended to enter into a contract which would preclude the survivor from making a bona fide gift from his or her own property it seems strange the agreement was not reduced to writing. In any event we are clear such a contract has not been established by clear and satisfactory evidence.
Appellants rely upon Baker v. Syfritt,
V. Error is assigned in the trial court’s finding the transfers in question were not shown to be fraudulent. We are not justified in disturbing the finding.
There is no evidence of actual fraud. The most that may be claimed is constructive fraud based, in the. main, on the fact the gifts totaled about $88,000 in value. Yet we understand the rest of Mrs. Lenders’ estate was appraised at about $540,000. Thus she gave her sisters only about 14% of what she then had. And, as stated, presumably they would have acquired under her will in any event about 40% of what Anne gave them in her lifetime. The finding the gifts were reasonable in amount has substantial support in the evidence. They did not defeat the only contract it may be inferred Mrs. Lenders made. They merely reduced the bequests to appellants by something like 14%. Dickinson v. Lane, supra,
VI. There is no merit to appellants’ contention, for which no authority is cited, the gifts to the sisters, except the transfer of Peniek & Ford stock, were testamentary in character.
Two of the gifts were effected by the creation of joint bank accounts payable to testatrix and, respectively, Katherine and Ellen. When the joint account in the Chicago bank was established testatrix and Katherine signed a signature card there but the terms thereof are not shown. However it appears without dispute by evidence offered by appellants that when the account was opened testatrix told Katherine and an official of the bank *1219 it was her intent and purpose the account should be Katherine’s and she was to have full access to it — testatrix wanted to be sure Katherine would have title to it. A few days before testatrix died she directed Katherine to withdraw the balance of the joint account in the Chicago bank. Katherine then wrote a check therefor but did not cash it until about a month after testatrix died.
It is not shown whether the joint account in the Cedar Rapids bank was created under a written contract with the bank. It seems clear, however, testatrix intended her sister Ellen at that time to have a joint interest in and control of the deposit just as she intended Katherine to have an immediate joint interest in and control of the Chicago account.
Evidently each joint owner of each account had the right to withdraw the entire fund at any time. All parties appear to have intended the gifts to be complete when the joint accounts were created. There is substantial support for the trial court’s finding “there was clearly a transfer of some quantum of present interest to the donee, so that the transfers could not be testamentary in character.”
No question of the admissibility of.parol evidence on the issue of ownership of a joint interest in these accounts is presented. See on this question Hill v. Havens,
We hold a joint interest in these accounts vested in Katherine and Ellen respectively, when the joint accounts were created and the gifts were not testamentary in character. Numerous authorities in support of this view include Estate of Awtry v. Commissioner of Internal Revenue, supra, 8 Cir., Iowa,
The remaining gift was proceeds of insurance on Mr. Lenders’ life, payable to testatrix, which she left with the insurance company “under a certain clause in the insurance.” Testatrix did not withdraw the fund and at her death the company paid it to the sisters as contingent beneficiaries. They received this money under the contract between testatrix and the company, not by virtue of any testamentary disposition by testatrix. Mutual Benefit Life Ins. Co. v. Ellis, 2 Cir., N.Y.,