180 Iowa 884 | Iowa | 1917
“Paragraph I. I direct that my just debts and funeral expenses be first paid.
“Paragraph II. Having heretofore advanced to my son Edward Lacy Watrous, large sums of money, I hereby devise and bequeath to him the sum of $3,000 to be paid in three annual installments of $1,000 each, and because of such advancements or loans, 1 hereby direct that he shall have no further share, part or parcel in my estate.
“Paragraph III. I hereby give and bequeath the rest and residue of my property, personal, real and mixed, to my daughter, Mrs. Marion Watrous Angelí, to my son Philip Bernard Watrous, to my son Charles Albert Watrous, share and share alike.
“Paragraph IV. I nominate and appoint to serve as executors o'f this my will without bond: Philip Bernard Watrous, Charles Albert Watrous.”
This will was executed March 12, 1914. On June 4, 1914, this will was duly admitted to probate in Polk County, and the executors named therein were duly appointed and qualified as such.
“Whereas Sophia G. Watrous, of said city of Des Moines, departed this life on April 30th, A. D. 1914, leaving a last will and testament, which was filed in the office of the clerk of the district court of the state of Iowa, in and for Polk County, on May oth, A. D. 1914, by the terms of which she gives and bequeaths to said Edward L. Watrous the sum of $3,000 in cash, and divided the remainder of her property equally among her other children, viz.: Marion Watrous Angelí, Philip B. Watrous and Charles A. Watrous, share and share alike-; and
“Whereas, said Edward L. Watrous, on May 29, A. D. 1914, filed objections to the probate of said will, and a contest thereof is thereby created and now pending; and
“Whereas, on May 30, A. D. 1914, Simon Casady, Esquire, of the city of Des Moines, Polk County, Iowa, was duly appointed special administrator of the estate of said Sophia G. Watrous by said Polk district court, in the cause entitled, ‘In re Estate of Sophia G. Watrous, deceased/ No. 8093 Probate, and is now qualified and acting as such special administrator; and
“Whereas, the said Charles L. Watrous, as surviving husband of said Sophia G. Watrous, under the laws of*890 tlie state of Iowa, notwithstanding the provisions of «aid last will and testament, is the owner of an undivided one-third interest in and to all of the property, both real and personal, and mixed, of which said Sophia G. Watrous died seized and possessed; and
“Whereas, both of the parties hereto desire to prevent a further contest of said will, and to settle and adjust all differences between the surviving children of said decedent, with reference to said will and said estate, in an amicable and friendly manner: Now therefore, it is agreed as follows, to wit:
“1st. That the objections of said Edward L. Watrous to said will be forthwith withdrawn' and dismissed, and that, so far as said Edward L. Watrous is concerned, said instrument may and shall be admitted to probate as the last will and testament of said Sophia G. Watrous, deceased, and shall never again be questioned, controverted or contested by him.
“2nd. That the said Charles L. Watrous agrees to and does hereby raise, create, establish and declare an annuity of $1,800 per annum in favor of said Edward L. Watrous, payable in installments of $150 per month, on or before the 10th day of each month, commencing with the month of May, A. T). 1914, and continuing so long as said Edward L. Watrous shall live. In the event of the death of said Edward L. Watrous, leaving a widow him surviving, then and in that event, said annuity shall be reduced one half, and shall be payable to such widow in monthly installments of $75 each, so long as such surviving widow shall live, or until her remarriage.
“Said annuity shall be payable in the city of Des Moines, Iowa, at the German Savings Bank, or at such other bank as said annuitant may direct, to the credit of said annuitant, out of and from the assets of the estate of said Sophia G. Watrous, deceased, belonging to said*891 Charles L. Watrous, and, upon failure to pay any installment thereof, the same shall bear interest at the rate of 8 per cent per annum from date of default, and may be enforced and collected, along with the costs and attorneys fees. s.
“3rd. In order to secure the annuity, interest and costs aforesaid, said Charles L. Watrous agrees to and does hereby make the same a charge and lien upon his individual interest, and upon the income and proceeds of sales of his interest in the estate of said Sophia G. Watrous, deceased.
“Done at the city of Des Moines, Polk County, Iowa, on this the 2nd day of June, A. D. 1914.
“(Signed) Charles L. Watrous,
“Edward L. Watrous.
“In the presence of
“Joseph C. Picken,
“James C. Hume.”
On November 18, 1914, Philip and Charles A. Watrous served a notice upon Charles L. Watrous, requiring him to elect as to whether he would accept and consent to the terms of the will; and on the same day, Charles L. Watrous filed with the clerk of the court, and had entered of record, his election to accept and be bound by the terms of the will. From this we quote the following:
“I hereby elect to accept and to be bound by the terms and provisions of said will, and waive all my rights, interests and claims as surviving husband of said Sophia Glover Watrous, deceased, and hereby assign, set over, transfer, and convey any and all of my rights, titles, interests, liens, and claims in and upon and to said estate absolutely and in fee simple to said Marion Watrous Angelí, Philip Bernard Watrous, Charles Albert Watrous, share and share alike as provided in said will.”
Ths action was commenced shortly thereafter by the
Defendants, EdAvard L. and his Avife, Agnes, appeared and filed answer, denying, both generally and specifically, most of the allegations of the petition, and also pleading that the contract betAveen them and Charles L. Watrous Avas upon a good consideration, to Avit, the dismissal of their contest of the Avill of the deceased; that it Avas knoAvingly and intentionally entered into by Charles L. Watrous with the consent of, or upon the suggestion of, their sister, Marion W. Angelí; and that their rights therein are superior to any of the claims of plaintiffs. They also aver that Charles L. Watrous elected to take a distributive share of the estate, rather than to abide by the will; and that his subsequent election to abide by and consent to the will is of no validity, fraudulent and void.
Charles L. Watrous intervened in the action, and tiled a petition, which substantially adopted the allegations of
“That his petition of intervention be dismissed upon its merits; that said annuity contract, Exhibit 2, above set forth, be found and decreed to be, in all respects, valid and binding, and to create a lien for the annuity thereby raised and created upon one third in value of all the legal and equitable estates in real property, and one third in value of all personal property, not necessary for the payments of debts, of which Sophia G. Watrous, wife of the said Charles L. Watrous, on April 30, 1914, died seized and possessed; that said Edward L. Watrous have judgment against said Charles L. Watrous for the amount now due and owing to him as above set forth, with legal attorneys’ fees and costs, and that defendants have such other and further relief as they may be entitled to in equity.”
The amount asked by way of a money judgment was for eight' monthly installments of the annuity of fl50 each.
Upon the issues joined, the case was tried to the court, resulting in a decree for plaintiffs and a judgment for defendants against the intervener for the amount of the annuity then due. The decree as entered makes the fol- . lowing findings of fact:
“That the contract made and entered into between Edward L. Watrous and Charles L. Watrous, dated June 2, 1914, as between the parties thereto, and also in so far as it is made for the benefit of the defendant, Agnes B. Watrous, is a valid and subsisting contract, except as hereinafter found and determined, for which Edward L.*894 Watrous parted with a valuable consideration in dismissing his contest to the will of Sophia G. Watrous, deceased, which consideration cannot be returned to him.
“That the evidence is insufficient to find that any fraud, misrepresentation, duress or undue influence was practiced or exercised in obtaining said contract.
“That Charles L. Watrous, at the time said contract was made, did not understand that he was making said annuity payable out of the estate of Sophia G. Watrous, deceased, or was creating a lien upon the interest in the estate of Sophia G. Watrous, deceased, which might accrue to him as her surviving husband, but as to each and all the other provisions of said contract, said Charles L. Watrous had sufficient understanding.
“That prior to making the contract with Edward L. Watrous, which contract is dated June 2, 1914, Charles L. Watrous had verbally elected to be bound by the terms of the last will and testament of Sophia G. Watrous, deceased, and subsequently elected by a written election filed in this court on November 18, 1914, and recorded in Probate Journal 61, page 469 of its records.
“That the contract of June 2, 1914, between Edward L. Watrous and Charles L. Watrous, did not and does not constitute an election on the part of Charles L. Watrous to claim his survivor’s third, nor any part thereof, in the estate of Sophia G. Watrous, deceased.
“That Philip B. Watrous and Charles A. Watrous, plaintiffs in this action and proponents of the will of Sophia G. Watrous, deceased, are not estopped from objecting to the contract of June 2, 1914, between Edward L. Watrous and Charles L. Watrous, nor are they estopped from maintaining this action.
“That, upon the death of Sophia G. Watrous, the right of Charles L. Watrous in her estate was not a vested interest, but a mere personal option or privilege, and was*895 not such an interest as could be made subject to a lien, or transferred or conveyed by Charles L. Watrous.”
We shall first treat the case as if there were no issue of mental incapacity, fraud, mistake or undue influence, and determine whether or not the contract -made between Charles L. Watrous and his son, Edward L., and his said son’s wife, is of any validity. This depends primarily upon whether or not the- surviving husband took anything in the estate of his deceased wife which he could encumber by contract. On this issue, the case must be determined under the provisions of the statute law of the state. Section 3270 of the Code, so far as material, reads as follows:
“Any person of full age and sound mind may dispose by will of all his property, subject to the rights of homestead and exemption created by law, and the distributive share in his estate given by law to the surviving spouse, except sufficient to pay his debts and expenses of administration; but where the survivor is named as a devisee therein, it shall be presumed, unless the intention is clear and explicit to the contrary, tlmt such devise is in lieu of such distributive share, homestead and exemptions.”
Section 33GG, Code, reads as follows:
“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 apart as her property in fee simple, if she survive him. The same share/ of the real estate of a deceased wife shall be set apart to the surviving husband.”
Section 337G, Supplement to the Code, 1913, provides:
“The survivor’s share cannot be affected by any will of the spouse, unless consent thereto is given within six months after a copy thereof has been served upon the survivor by the other parties interested in the estate, and*896 notice that such survivor is required to elect whether consent thereto will be given, which consent, when given, shall be in open court, or by a writing filed therein, which shall be entered on the proper records thereof; but if at the expiration of six months no such election has been made, it 'shall be conclusively presumed that such survivor consents to the provisions of the will and elects to take thereunder.”
Section 3369, Code, reads as follows:
“The survivor’s share may he' set off by the mutual consent of all parties in interest, or by referees appointed by the court or the judge thereof, the application therefor to be made in writing, after twenty days from the death of the intestate and within ten years, which application must describe the land in which the share is claimed, and pray the appointment of referees to set it off.”
It will be noticed that part of the first section quoted is inapplicable, as the surviving husband, Charles L. Watrous, is not named as a devisee in the will, and there is no presumption arising from a devise in his favor that this was in lieu of the distributive share allowed a husband by law. That section does provide, however, that every disposition of property by will of a husband or wife is subject to the distributive share given by law to the survivor. Section 3366 thus defines that share:
“One third in value of all the legal or equitable estates in real property possessed by testator [or testatrix] at any time during the marriage * * * shall be set apart as her [or his] property in fee simple, if she [or he] survive him [or her].”
Section 3369 provides for the setting off of this share, and that application therefor shall be made within ten years from testator’s or testatrix’s death.
Section 3376 has reference to the effect of a will upon the distributive share, and says, in substance, that the
In the case at bar, testatrix made no provision in her will for her surviving spouse, who is the intervener herein, but this fact in no wise renders inapplicable the statute requiring him, upon receiving the notice provided by statute, to elect whether or not he will consent to the provisions of the will. The statute is designed not only for the purpose of preventing the husband or wife from disposing of his or her property in such a way as to deprive the survivor of one third in value thereof without the consent of such survivor, but also to facilitate the settlement • of
There would seem to be no valid reason why the survivor may not be required to elect whether or not he or she consents to the provisions of a will which disposes of the whole estate of the deceased spouse to persons other than such survivor, as well as in a case in which some provision is made by the will for the surviving spouse. As above stated, the election required presents to the survivor the option of consenting to or rejecting the provisions of the will and the disposition made thereby of the property of the deceased spouse. The effect of such election may be to deprive the survivor of his or her distributive share, or of any interest whatever in the estate of such deceased spouse; but, except in so far as the beneficial results of such election may tend to influence the decision of the survivor, same is merely incidental to the question of election. Whether the survivor elects to consent to or reject the provisions of the will of a deceased spouse depends entirely upon the voluntary action of the survivor, who is given a period of six months after the service of notice in which to reach a conclusion. The statute contemplates that such survivor shall have a reasonable time in which to determine whether to elect to consent to the disposition of the property made by the will of the deceased spouse or to insist upon the share which he or she is entitled to under the statute, if the election is to refuse to consent to the provisions of the will. If the will of the deceased spouse makes some provision for the benefit of the survivor, then the effect of the election to consent to the provisions of the will entitles such survivor, as a devisee under the
It was held in Arnold v. Livingston, 157 Iowa 677, that the fact of an election by the survivor might be proved by other evidence than the record of the court, and that such election could be thus made without waiting for the service of notice to elect. In Berry v. Donald, 168 Iowa 744, the court held that the evidence of such election to take under the will, in lieu of distributive share, must be clear and satisfactory.
Interyener and his wife had lived apart for a number of years, and both were possessed of property of considerable value. Shortly after the death of testatrix, an effort was made by some of her children to settle and adjust all controversies with Edward L. amicably. To this end, one of the legatees named in the will caused a contract to be prepared, providing that, from the net income of the estate, Marion Watrous Angelí, daughter, and Philip Bernard and Charles Albert Watrous, sons, should each first receive $150 a month, and Edward L., out of the remaining net income, an annuity of $150 a month; and after his death, if survived by his wife, Agne.s B’. Watrous, she should receive $75 a month so long as she lived and did
Edward L. testified that he submitted this contract to his father and talked it over with him, as the result of which an attorney was employed to prepare a contract embodying different terms. After Edward L. had filed objections to the admission of his mother’s will to probate, a second contract was submitted to him by one of the plaintiffs, embodying substantially the same provisions as the former, except that the objections to the admission of the will to probate were to be withdrawn.
Mrs. Angelí visited' her father upon different occasions before and during his illness, and urged that some arrangement be made by which an annuity would be provided for Edward L. out of his interest in his wife’s estate. The latter also talked to his father about it, urging that he was the owner of one third of the estate, and that he had a right to make provision therefrom for an annuity.
The contract finally executed was the result of the negotiations had between the parties last above named. Charles L. testified, in effect, that he desired that some provision be made for the maintenance and support of Edward L. and Agnes B. Watrous. He further testified, in part:
“I felt what I did I wanted to do myself when I was able to think more. I said what I did I wanted to do myself and not interfere with anything my wife had done. * * * At the time I signed the contract, there was no thought or purpose in my mind that I was interfering in any way with Mrs. Watrous’ will, and the first I have any recollection of any lien being mentioned was when I read this contract, and I didn’t at the time understand or comprehend what it meant. * * * Mr. Hume, Edward and a stranger was there. I don’t recall anybody else. The*901 convex’sation was vexy short. When they caxne in there, I seen the paper. I made no objection except to the lien. That disturbed nxe. I hadn’t heard of it before and I was afraid that was not right, and I asked Mr. Hume. I knew he was an attorney and ought to know, and T knew I was not fit to know, and I asked and he answered, and I relied entirely upon what he said. I knew he ought to know. He said it would not affect the handling of the rest of the property; that I had so much that was mine and I had a right to do it, and as far as I know — now I don’t remember other conversations at all. Q. Well, did you realize or understand that yoxx would have to make a claim adverse to Mrs. Watrous’ will in order to carry out that contract ? A. No, I did not.”
He further testified that, shortly after the death of his wife, he met Edward L. oxx the street in Des Moines, who asked him if he had seen his mother’s will, to which he replied:
“No, I hadn’t seen anything about it; and he said, woxxldn’t 1 like to? and I said it was nothing to me; that she had done what she wanted.”
Referring to the tixne when the contract was executed, he further testified:
“My recollection of that is very dreamy. And then at the end of the document, there was that matter of the lien, and I had not heard anything of that before from either of my children, and it was something xxew and disturbed me; axid I asked Mr. Hume — this is xxiy recollection — as a lawyer whether that would affect the handling of the rest of • the property in settling it up, axxd I understood him to say, ‘No.’ Just how I inqxxired and just how he answered, I am not certain; bxxt I aixx certain that what he said satisfied me, and I rolled over on xnv left side and wrote my name. *• * * I heard from two of the children that they were talking about allowing Edward some al*902 lowance in the way of an annuity, and I didn’t understand that there was any objection on anybody’s part to that, except that they said Philip refused to sign anything. I don’t know what they talked about among themselves. ->:• * * j understood that he, Edward, was willing to give up everything, provided he had an annuity; but I didn’t understand that I in any wise contracted with him to do anything, except that I contracted to surrender a certain share of my wife’s property, which I was told I had a right to do, and that was all that I knew of it.”
Questioned as a witness, regarding the election of November 18th, he testified:
“I thought I understood it when I signed it, and I believe I understand it now. It is an election in accordance with my intent and, purpose and wishes ail the tvme.”
Later, when he had recovered from his illness, he wrote to his son Edward as follows:
“As to the lien on your mothei’’s property, I did not realize that what I did was giving any such thing, and now that I am to see that, out of my own property, if not otherwise, you get the $1,800 a year, I wish you would authorize me to get some lawyer to make a , proper renunciation on your part of that lien. It will bring you no further dollar than my contract, for you know I am able; but a good lawyer here says that it will hinder handling the property in order to exchange or improve it so as to get the best results out of it. Now, since you are to get your $1,800, which you want, will you not do that for me? Then I shall be freed from a feeling that I have burdened them unnecessarily.”
It is quite apparent, from the foregoing statements of his purpose, intention and understanding of the transactions here involved, that, at the time the contract was executed, he was under the impression that he had a right to incumber any interest which he might have in his wife’s
“It is not correct to say that, immediately upon the death of the wife, the surviving husband becomes vested by operation of law with an absolute title to a one-third interest in the land of which she dies seized. He does become vested with a right to choose whether he will take such share, or, in lieu thereof, will claim and hold a homestead right in the property, and when such choice is made, it doubtless relates back to the date of the death of his. wife.” Piekenbrock & Sons v. Knoer, 136 Iowa 534.
“It is not correct to say that, upon the death of the
Several cases are cited by appellants to sustain their, .contention that title vested in Charles L. immediately upon the death of his wife, among which cases are In re Estate of Smith, 165 Iowa 614, and Bosworth v. Blaine, 170 Iowa 296. In the former of the above cases, the language used was to state the concession of counsel, whereas in the latter, the question under discussion related to a claimed election to take the homestead, under Section 3377, and the question as to whether the title vested in the survivor was not involved. The remaining cases cited are not in conflict with our conclusion, and need not be further considered. In Waterloo, C. F. & N. R. Co. v. Harris, 180 Iowa 149, the above cases are cited as holding that the wife’s title vests upon the death of her husband, but the citation is without discussion or distinction, and the point here being considered was not before the court.
The settled rule of this state is undoubtedly that expressed in Robertson v. Schard, supra[ and Piekenbrock & Sons v. Knoer, supra. Following the holding of these cases, it is our conclusion that the election of November 18th related back to the date of his wife’s death, and the attemxu to create a lien upon or the payment of an annuity out of her estate failed, and the court rightly cancelled the pretended lien provided for in the contract above relerred to.
“Q. You did agree, then, he was to dismiss his contest and you were to put this agreement in Avriting — is that so ? A. I don’t remember that there was anything about dismissing the contest to be put in Avriting. I think he wanted me to fix this annuity, and I told him I would. Q. To drop everything and have no more fuss? A. He said if I did that, everything would be dropped.”
Referring to another conversation between the ‘same parties, he said:
“I didn’t want to have any litigation such as Ave are having now. I have always been Avilling to do almost anything rather than have litigation, and he said if he had this kind of an agreement that there would not be any.”
While the father obtained no pecuniary consideration from said contract, the situation and relation of the respective parties at the time the same was executed must-be taken into account. The estate of testatrix was a large
“Compromises for the settlement of family difficulties or family contiwersies, if at all reasonable, are especially favored, both in equity and in law; and*in such cases, the court will go further to sustain the same than they would under ordinary circumstances. The termination of such controversies is considered a valid and sufficient consideration for the agreement.” 8 Cyc. 504; Adams v. Adams, 70 Iowa 253; Stoddard v. Mix, 14 Conn. 11; Moon v. Martin, (Ind.) 23 N. E. 668.
This position of appellants’ cannot be sustained. The record wholly fails to show any act on the part of appellees which misled appellant or which induced him to enter into the annuity contract Avith intervener, or to dismiss the contest proceedings. The contract Avas made after negotiations with the other heirs for a settlement on the basis of a contract embodying many of the same provisions failed entirely. Surely, it cannot be said that their silence, after constructive or even actual notice of the execution of the contract and of the dismissal of the contest proceedings, would operate to create the estoppel contended for. No inequitable conduct on the part of appellees is shoAvn. Mrs. Angelí, Avho asked her father to make provision for the annuity, is not a party to this suit. Furthermore, at the time of the institution of this suit, Edward L. Watrous could have maintained an action for the purpose of having the probate of his mother’s Avill set aside, in which proceedings every substantial legal right which he possessed before the probate of the Avill could have been urged.
Appellees Avere not, therefore, estopped to prosecute this action.
It appears without conflict in the evidence that, at the time of the execution of said contract, intervener was ill and confined to his bed, and the evidence on his part shows that he ivas very weak, and under the constant care of a nurse and physician. I-Te was examined as a witness in his own behalf, and testified fully regarding the transaction and conversations leading up to the consummation of the contract in question. While his recollection as to many of the details and some of the important matters in connection therewith is apparently uncertain and indistinct, yet, upon the whole record, we are not convinced that he signed the contract without sd understanding its terms and conditions as to make the same invalid upon that ground. Intervener was, at the time, about 77 years old. In early life, he was admitted to the bar, and for several years practiced his profession, and appears to have been a man of rugged mental capabilities and large business experience. ITe appears to have grasped the significance of the contract and to have understood its terms, except that he maintains that he did not understand the full effect of the provision which sought to create a lien upon the property which he might receive from his Avife’s estate. The contract is in no sense an unnatural or unreasonable one, but, in view of the condition of his son's health and the probable impecunious condition of his wife that would follow the death of her husband, if she survived him, liis consideration for them may well have induced the father to execute the contract in question.
This court has held that, in order to avoid a contract on the ground of mental incompetency, more than mere weakness of the mind or unsoundness to some degree must be shown. It must appear that he was incapable of under
Without setting out the evidence in detail, which would unduly extend this opinion, suffice it to say that we have carefully read the record, and are satisfied that intervener was not, at the time of the execution of said annuity contract, of unsound mind to such an extent as to render said contract void. The attorney and notary who were present when the contract was signed and acknowledged, testified at length regarding the transaction, and their testimony, together with the understanding and recollection of Charles L. Watrous as to what was said and done at the time the contract was signed, removes all doubt as to his mental condition. In our opinion, the evidence does not show that intervener was induced to make the annuity contract by fraud, duress or undue influence.
The rule seems to be that a compromise of a suit for which there was no ground, and which was not brought in good faith, is no consideration for a contract of settlement. Sullivan v. Collins, 18 Iowa 228; Tucker v. Ronk, 43 Iowa 80; Potts v. Polk County, 80 Iowa 401. We have, however, reached the conclusion, from all the facts and circumstances before us, that there was a sufficient consideration to support the contract, and that, giving the same effect to the statement of counsel as would be required if the evidence had been received, the same is insufficient to change the result, and we will not, therefore, reverse the case because of the exclusion of this testimony.
We think the motion should be overruled. It could serve no good purpose for appellants to file duplicate abstracts, and no prejudice is shown to have resulted to anyone from the failure of intervener to file a separate abstract.
For the reasons pointed out, this cause is, both upon defendants’ and intervener’s appeal, — Affirmed.