146 Iowa 290 | Iowa | 1910
The plaintiff is the son of David Wright, deceased, and the defendant is the administrator of David Wright’s estate. In 1902 the plaintiff resided in the town of Earlham, Iowa, where he was engaged in business, and his father lived in Wilton, Iowa. In consideration of the sum of $2,000, which was paid to him by his father, the plaintiff sold his business in Earlham and moved to Wilton in June, 1903. In the latter part of the same year disagreements arose between the plaintiff and his father, which' resulted in the father’s demand that the plaintiff give him a note for the $2,000 which had been paid to him as consideration for his removal to Wilton. The plaintiff thereupon executed the note involved herein, and it remained 'in the possession of his father until the latter’s death in March, 1907, and it thereafter passed into the hands of the defendant, and was inventoried as a part of the estate, with other notes of the heirs, all of whom had given notes to their father. Decedent left a will, which was contested and found to be invalid by a jury. While a motion for a new trial was .pending, the heirs met, the plaintiff being present, and
Now, for the purpose of settling all controversies between the parties in interest, it is agreed as follows:
First. The motion for a new trial in said cause, which has been filed, shall be overruled by the court, and the will which has been offered for probate shall be set aside and a judgment shall be entered upon the verdict which has heretofore been rendered. The costs of the trial which has been had, shall be taxed to said estate. This not to include attorney’s fees.
Third. Elizabeth Hall, the contestant of said will, enters a credit of fifteen hundred ($1,500) dollars against herself and in favor of said estate for the use of the Kansas land, and the same shall be inventoried by the administrator as a part of the assets of the estate.
Fourth. The heirs at law, other than said Elizabeth, shall pay or account to the administrator for all their indebtedness to the estate, as evidenced by their notes.
Fifth. The said Elizabeth Hall shall be charged with one-half of the amount of her note to the decedent.
Sixth. Inasmuch as the several heirs are in immediate need of ready funds, it is agreed that the administrator shall distribute to the respective heirs, equally, the personal property (excepting notes and indebtedness due to the estate from the several heirs), taking from each of said heirs an agreement or undertaking, that in the event of debts being proven against the estate, by creditors other than heirs, that each of said heirs will, upon demand from the administrator, contribute his or her share of the funds necessary to pay said debts, and that in the event of the failure of any of said heirs to furnish said fund to the administrator, within three months after said demand, the administrator may apply to the court for an order and proceed to sell sufficient of the share of the heir thus delinquent, to pay said indebtedness.
Seventh. The amount which was owing by each of the heirs to the said decedent at the time of his death, including the $1,500 chargeable against the said Elizabeth Hall, shall come out of the shares of the said respective heirs when the real estate is sold and out of the first
The appellant contends that the note was without consideration; that the agreement of December 16, 1907, can not be construed as covering it, and, finally, that the judgment in the partition action is not an estoppel, because of the petition and notice in that case. For the purposes of this decision, the first and last of the appellant’s contentions may be conceded. But we can not assent to the proposition that the agreement does not bind the plaintiff and estop him from now asserting that the note should not be treated as representing an indebtedness to the estate or an advancement to him. The note was inventoried in April, 1907, as a part of the assets of the estate, and as a valid obligation on the part of the plaintiff. When the agreement of December 16th was entered into,
■It would be inequitable to permit the plaintiff to