180 Iowa 859 | Iowa | 1917
That the plaintiff was married to Wilson B. Martin, now deceased, 24 years ago; that, at that time, deceased had 5 children by a former marriage, who are still living — one of these is Frank Martin; plaintiff and deceased had 3 children, all now living, one of whom is Dwight. That, at about the time of their marriage, they purchased 80 acres -of land, referred to in the record as “the home 80,” and also “the west 80;” a year or so afterwards, they purchased another 80 acres, referred to in the record as “the hill 80” and “the east 80;” a part of
“Sioux City, Iowa, June 2, 1915.
“Wilson B. Martin,.
“Westfield, Iowa.
“Dear Sir:
“We hereby acknowledge that we hold in trust for you the following described property, to wit: The East One*864 Half (E%) of the Southeast Quarter (SE14) of Section Twenty-six (26), Township Ninety-two (92), Range Forty-nine (49), and agree to manage, control and convey the same as you -shall by will or deed direct.
“Very truly yours,
“Farmers Loan & Trust Company,
“By R. H. Burton-Smith, Atty.”
About 12 days thereafter, and on June 14, 1915, a trust agreement was entered into between deceased, Wilson B. Martin, and the defendant,- in regard to the 80 acres of land deeded to plaintiffs husband, now deceased. This agreement is as follows:
“Trust Agreement.
“This agreement, entered into this 14th day of June, 1915, by and between Wilson B. Martin of Westfield, Plymouth County, Iowa, party of the first part, and the Farmers Loan. & Trust Company of Sioux City, Woodbury County, Iowa, party of the second part,
“Witnesseth: That ■ whereas the party of the first part has deeded to the party of the second part all his right, title and .interest in the following described property to wit: The East One half (E%) of the Southeast Quarter (SE14) of Section Twenty-six (26), Township Ninety-two (92), Range Forty-nine (49), situated in Plymouth County, Iowa, in consideration therefor the said second party agrees as follows:
“(a) To jiay the net income from said property annually to said first party.
“(b) In case such net income shall not be sufficient to keep said first party in comfortable circumstances, the said second party agrees to sell said property and, from time to time, to pay over to said first party such portion of the net returns from said sale as may be necessary to the comfort of said first party, keeping balances at interest.
“(c) Whatever property or money shall remain in the*865 hands of the said second party upon the death of said first party, shall first be charged with the expenses of the last illness and funeral of said first party, and with a reasonable charge for the services rendered by said second party, and the said second party agrees to pay one thousand dollars ($1,000) share and share alike between Dwight Martin, Grace Waterbury Martin and Auriel Marie Martin, children by his present wife, Emma J. Martin, if such a sum shall remain in its hands, and to divide any balance equally, share and share alike, among the five children of said first party by his first wife, Mary Martin, or among their children per stirpes.
“Signed the 14th day of June, A. D. 1915.
“Wilson B. Martin,
^Farmers Loan & Trust Company,
“By James F. Toy,
“By F. W. Kammann.”
By his will, Wilson B. Martin gave to his wife, this plaintiff, “the home 80,” which had theretofore been deeded to her, and provided that such-provision in his will was to be in lieu of dower, homestead exemptions and distributive share. Another provision of his will is that he makes no provision for his three children by his second wife, the plaintiff, as he expected her to provide for them out of the property set off to her. There are other provisions in the will, which we shall not set out.
On the last named date, deceased executed a bill of sale to plaintiff of certain personal property, — horses, colts, cows, hogs, machinery, grain, etc., — being all the personal property. On that same date, the plaintiff and deceased gave to the defendant a paper, reciting that, an application having been made for a loan of $2,000, the defendant was authorized: First, to pay the usual and necessary expenses ; second, to place the remaining proceeds of said loan into a common fund belonging to both of the subscribers;
“The Farmers Loan & Trust Company,
“Sioux City, Iowa.
“Gentlemen:—
“I have executed the assignment herewith delivered to you, being an assignment of policy Number 66537, in the Northwestern Mutual Life Insurance Company, in consideration of an agreement that Wilson B. Martin shall make, execute and deliver to you the last will or deed of trust in which there shall be devised and bequeathed to Dwight Martin, Grace Waterbury Martin and Auriel Marie Martin the sum of one thousand dollars ($1,000), share and share'alike in said sum of one thousand dollars ($1,000), and, upon delivery to you of said will or deed of trust, you may deliver to Wilson B. Martin, or anyone whom he shall direct, the assignment hereby turned over to you.”
And in another paper, she relinquished all her right and interest as beneficiary in said insurance policy. Other papers were executed; but it is perhaps unnecessary to set them out, since appellant contends, and in this appellee seems to acquiesce, that the case turns upon the three exhibits before referred to; that is to say, Exhibit 10, „ the deed from plaintiff and her husband to the defendant, Exhibit 14, the paper in which defendant acknowledges that it holds “the hill 80” in trust for plaintiff’s husband, and' Exhibit 15, the trust agreement.
Appellant states that the greater part of the testimo
Appellant’s propositions are that, under Section 3366 of the Code, — which provides, in substance, that one third in value of all the legal or equitable estates in real property possessed by the husband at any time during the marriage, which have not been sold on execution or other judicial sale, and to which the wife had made no relinquishment of her right, shall be set off to her if she survive him, — plaintiff’s dower interest in the real estate in controversy is not a subject of contract between her and her deceased husband; and that, therefore, her interest in the property in controversy ivas not divested by the division of the property between them; that such division, being a void contract, cannot be the basis of an estoppel preventing plaintiff from claiming dower in the land. The real basis for plaintiff’s claim is that, though plaintiff and her husband, on June 2, 1915, executed to the defendant the warranty deed Exhibit 10, before referred to, Avherein she relinquished her dower therein, the paper thereafter and on the same day executed by defendant, or given to deceased by the defendant, acknowledging that it held the land in controversy in trust for plaintiff’s husband, revested an equit
Cases are cited by appellant in support of the different propositions, hut we think the case is ruled by our holding-in the case of Manatt v. Griffith, 147 Iowa 707, though, of course, the facts are not precisely the same. Appellant seems to place much reliance upon the case of In re Estate of Kennedy, 154 Iowa 460, and prior cases similar thereto. But we think the facts in the instant case are essentially different from those involved in the cases cited by appellant, In the Kennedy case, it was held, at page 467, that the fact was that the subject of the contract alleged was her inchoate interest in his real estate. The transaction was based upon' an oral agreement between a husband and wife, whereby the wife agreed to abide by the last will and testament of her husband, in consideration of real estate and personal property conveyed to her, and in that case, the court held that, under Section 3154 of the Code, following prior cases, one spouse has no interest in property owned by husband and wife which is the subject of contract between them. In the Kennedy case, there was no claim, as in the Manatt case or in the instant case, that the transactions involved were entered into for the purpose of making a division of the property of the husband and wife, to enable them to control and dispose of their lands free from any dower right of the other therein, or that the mutual understanding and division had been acted upon by both of them.
The court was justified in finding from the evidence that plaintiff and her husband mutually agreed to a full and complete division of their property, with a view to thereafter living apart, and that they both in good faith undertook to carry out such agreement, and| that it was carried out The parties were competent to contract, and
It is thought by appellee that deceased could not hare
We think that the statement by defendant, after the execution of the deeds, to the effect that it held the husband’s property in trust for him, did not have the effect of revesting plaintiff with an interest in her husband’s land, of which interest she had previously divested herself by the deed. Under the authority of Manatt v. Griffith, supra, we think plaintiff is estopped from now asserting any dower interest in the land in controversy.
It follows, therefore, that the decree of the district court must be, and it is, — Affirmed.