182 Iowa 1170 | Iowa | 1918
Sarah Briggs died testate February 22, 1913, and, upon the admission of her will to probate, D. W. Sutherland was appointed executor of her estate. In this action, recovery is sought by him upon an article of agreement between decedent and her grandsons, defendants herein, in words following:
“This article of agreement made and entered into and executed in triplicate on this twenty-third of August, 1907, by and between Sarah Briggs, party of the first part, and Frank W. Briggs and Allen G. Briggs, parties of the second part, witnesseth: The said Sarah Briggs, has the sum of fifty hundred ($5,000) dollars, which she has loaned to the said second parties and which they have invested in the Northwest Quarter of Section Thirty-Three of Township Number Eighty-One, North, of Range Thirty-Six, West of the Fifth Principal Meridian, Lincoln Township, Audubon County, Iowa, and on which land all the parties at the present time reside. There are no papers showing this loan. The said first party hereby states all interest accruing on this amount of five thousand dollars ($5,000) will be paid up to the first day of March, 1907, by the second parties this day, and this agreement is a settlement of all matters relating to said loan to March 1st, 1907. First party also agrees to leave the said money in the possession of the second parties as long as this contract remains unbroken and as long as she shall live, provided this agreement be not violated; but she reserves the-.right to make ultimate disposition of the said amount of $5,000 by will or otherwise. The second parties hereby agree to pay the said first party in consideration of the above agreements and loan of money, the sum of two hundred dollars per annum*1174 from and after the first day of March, 1907, as follows; $200.00 on the first day of March, 1908, and $200.00 on the first day of March of each year thereafter during the life of this contract, which payment of said sum shall be in full for the use of the said money belonging to the first party during the year ending on the date of payment. Said payments are to be made at the Bank of Manning, Manning, Iowa. Second parties also agree to consult first party should they desire to sell said land; and if they wish to sell, they agree to satisfactorily secure the first party in the sum due her before effecting said sale.
“In witness whereof the said parties have hereunto affixed their signatures on the day and year above mentioned.
“Sarah Briggs, First I‘arty.
“Frank W. Briggs,
“'Allen G. Briggs, Second Parties.”
This contract was duly acknowledged by the parties thereto, and filed for record December 14, 1907. The defendants pleaded, prior to any breach, that the above instrument was settled, satisfied, and discharged, same being-evidenced by writing on the margin of the record of said instrument in the county recorder’s office, in words following:
“These articles of agreement released this 22d day of May, 1908, by agreement of parties and certifying that money has been paid.
“[Signed] Sarah Briggs.
“[Signed] Frank Briggs.
“[Signed] Allen G. Briggs, by
“F. W. Briggs.”
They say that said contract and indebtedness evidenced thereby are discharged, and the executor estopped from claiming anything thereunder. Defendants further allege that decedent forgave them any unpaid portion of the amount owing on said instrument, and that the above writing was signed by her to satisfy the indebtedness and re
Mrs. Lilas Briggs, wife of defendant Allen G. Briggs, was then called as a witness, and, after testifying that she was acquainted with decedent, stated that the latter was at her home about May 22, 1908; that deeedent went to Audubon with Frank W. Briggs on that day; and that before they went she had heard a conversation between decedent and Allen Briggs about the $5,000 contract. She was asked:
“Now, just tell the jury what Sarah Briggs said, if anything, about what she would do with reference to this contract, — what she was going to do about releasing it, or otherwise.”
Counsel for defendant objected to the competency of the witness, and to the testimony, as incompetent and irrelevant to any issue in the case. The court expressed the opinion that the “objection is good, * * independent of the statute, * * * on the ground that it is entirely immaterial; the intention or the expressed intention of what is sought or going to be done some time in the future.” it was then explained that the court ruled that what was said was immaterial. We cannot concur in this view. One of the issues raised by the answer was whether decedent, in making the marginal entry, so did with the purpose of forgiving the debt. What she may have said at about the time
Over -an objection as incompetent, immaterial, and irrelevant, not binding on the defendants, not made in their presence, and as not tending to impeach the'witness, she answered that she did not remember telling anything of the kind to anyone, and, in response to another question, that she did not remember making the statement at any time.
Later, Mrs. Newell was called as a witness, and, after stating that she had attended the sale in the fall of 1913 at Tom Newell’s, and that she had met Mrs. Briggs there, was asked:
“What is the fact about you having had a conversation with Mrs. Allen Briggs at that time with reference to*1177 the boys, Frank Briggs and Allen Briggs, owing their grandmother something ? Did Mrs. Allen Briggs say to you, at the sale in the fall of 1913, that she did not want the boys, referring to Allen and Frank, to buy that 40 acres, because they owed Grandma something?”
It will be observed that the one statement to Mrs. New-ell, if made, was not necessarily contradictory of the testimony of the witness. Only by inference might it be construed even to be inconsistent therewith. If the witness referred to the contract, by “'owing their grandmother something,” then the inference would be that, in the witness’ opinion, something was unpaid thereon; but what? The defendants concede that, even if it were cancelled, they were to pay her $200 per year until her death for her maintenance, and for all that appears, she may have had this in mind. But there is nothing to show that she referred to the contract, nor that she may not have referred to some other indebtedness. Moreover, notwithstanding what decedent may have said, the witness may have thought defendants liable on thp contract. The record was such that it might not have been found that the one statement was contradictory of the other; and therefore Mrs. Newell’s testimony should have been excluded, and there was error in overruling the objection thereto and in instructing the jury thereon.
“All the property I own at the present time is the sum of five thousand ($5,000) dollars which I have loaned to my two grandsons, Allen G. Briggs and Frank W. Briggs, tenants in common. The said investment is not evidenced by promissory notes or a mortgage and the only written evidence thereof is one certain contract entered into and executed in duplicate on the 23d day of August, 1907, by and between myself and my two*1178 grandsons aforesaid, which contract was recorded in the office of the county recorder of Audubon County, Iowa, on the 20th day of July, 1909.”
Then followed provisions directing the payment of debts, expenses of last sickness and funeral; giving $300 to one son of her son Byron’s; $100 to another son; and $1 to each of two daughters of said son; $100 to a granddaughter, Lilly Blake, daughter of her son SSilas; $200 to Bert Baker, son of Silas and adopted by Mrs. Baker; $1,000 to her son Byron; to a son of her daughter Mrs. Baker, $200; $100 to each of the defendants, — specifying that this “shall constitute the full share of each of my grandsons of my estate and shall be in settlement of all board, lodging, care and maintenance and for all service of all kind and description that has been rendered prior to this time or that may be rendered and furnished subsequent to the date hereof and prior to my death by either of my above said grandsons or by any member or members of their families.”
In the tenth paragraph, she left “all the rest, residue, and remainder of my property of whatever kind or description” to her daughter, Frances A. Baker.
To the probate of this will defendants objected, on the grounds: (1) That the will was the result of undue influence of Mrs. Baker, and not the voluntary act of decedent; and (2) that decedent, at the time of making the will, was of unsound mind. The' will and objections were received in evidence, -over ■ objections. If the contract had been paid, or the indebtedness forgiven, the disposition attempted in the will would be quite immaterial to defendants, and their course in interposing objections was open to inferences inconsistent with the claim that the contract had been discharged.
Frank W. Briggs attempted explanation:
“I had my idea there was another will in existence, because we were to get the bulk of the money, and it seems*1179 we did not have much time;” had but a few days, and had the attorney draw the papers, and “we signed them. I had information or knowledge of the execution of another will, instead of the one that has been offered here in evidence.”
He further stated that he did not know anything about this will. This seems to emphasize, rather than obviate, the inference that they were not relying on the discharge from the obligation of the contract, but looking for interest therein through inheritance or bequest, by preventing the probate of the will. There was no error in the ruling.
Allen Briggs was thereafter called by the defendant, and testified that he had heard Sutherland’s testimony, and remembered the incident of giving him a check for $200; that he told him they owed their grandmother- that amount, and • had been “paying her ever since the release, to keep her; that we had been paying her $200 every year; that it was to keep her, since she released the contract and gave
“The marginal entry signed by the decedent, Sarah Briggs, and the defendants herein, * * ■ * is presumptive evidence .that thereby the said Sarah Briggs discharged the defendants herein from all liability. * * * This is a mere presumption of law, however, and is not conclusive upon said question; but the plaintiff may overcome such presumption and show that, notwithstanding said marginal entry aforesaid, said debt and the obligation of the defendants to pay the same, mentioned in said Exhibit 1, still exists; and, before the plaintiff can recover in this action, he must show, by a preponderance of the evidence, that, notwithstanding the entry made upon the*1182 margin of the said record, that the defendants were not released or discharged from the payment of the said sum of $5,000; and this is a question of fact for your determination, after full consideration of all the evidence -throwing light thereon. In order to overcome the said presumption hereinbefore referred to, and which is implied by law, ■by reason of the marginal entry made in Record G, page 269, in the recorder’s office, it is not necessary that the evidence on said point should be direct; but the evidence will be sufficient if all the facts and circumstances throwing light thereon, and which are in evidence before you, satisfies you that the decedent, Sarah Briggs, did not release the defendants from liability upon the contract sued on herein. Or, if you are satisfied from the evidence that the defendants, after making of said marginal release by said Sarah Briggs, and if you believe from the evidence that, subsequent to said marginal release, recognized the indebtedness as still existing from them to Sarah Briggs or to her executor, or her estate, this will be sufficient to warrant you in finding that, by the said marginal release, the defendants were not discharged from payment of said indebtedness under the contract sued on herein.”
“Where a person is in possession of personal property, the acts and declarations of such person with reference to such property, explanatory of the right by which such person claims to hold such property, is receivable in evidence; and in this case, the acts and declarations of the decedent, Sarah Briggs, such as recording the said instrument the second time, as above stated, and the making of her last will and testament, which is in evidence before you, making disposition of the debt sued on herein, and evidence, if any, of like character, together with all other facts and circumstances in evidence throwing light thereon, may be considered by you in determining whether or not the debt hereinbefore referred to, and which the defendants were obligated to pay, by the terms of said instrument, amounting to the sum of $5,000, and interest thereon at the rate of $200 per annum, was in fact released, discharged, and fully settled, as claimed by the defendants in their answer, by virtue of the marginal entry in the recorder’s office heretofore referred to.”
It will be borne in mind that the only issues submitted were whether the indebtedness evidenced- by the contract had been (1) paid or (2) forgiven; and we are of opinion that decedent’s subsequent declarations might not be considered as bearing thereon. Of course, the declarations of one in possession of personal property are admissible in explanation thereof, as bearing on whether as owner or by virtue of some other right. Nodle v. Hawthorn, 107 Iowa 380. But that issue was not involved. Unless discharged, decedent pwned the contract. If discharged, • it was of no more consequence than a blank piece of paper, and if not discharged, its possession was not essential to its enforcement. In either event, the paper, as such, might have be
Owing to the errors pointed out, the judgment is — Reversed.