In re Estate of Brown
| Decision Date | 09 July 1908 |
| Citation | 117 N.W. 260,139 Iowa 219 |
| Parties | IN RE ESTATE OF JOHN H. BROWN, Deceased, ZELLA STINSON SNIDER, Contestant-Appellant, v. IDA BROWN, Proponent-Appellee. HAZEL BROWN, Minor, Contestant, and HAZEL BROWN, by Guardian, and ZELLA STINSON SNIDER, by Guardian, Appellants, v. IDA BROWN and ARTHUR HURTT, Administrators, Appellees |
| Court | Iowa Supreme Court |
Appeals from Linn District Court.--HON. F. O. ELLISON, Judge.
THESE are two actions to set aside the will of John H. Brown deceased. One is an appeal from the action of the district court sitting as a court of probate in admitting the will to probate, and the other an action in equity to set aside the probate of the will. In each action the will was sustained and contestants and objectors appeal.-- Affirmed.
Affirmed.
Redmond & Stewart, for appellants.
Main & Griffiths, for appellees.
John H. Brown died on or about June 25, 1906, at the age of forty-eight, leaving surviving two daughters, Zella Stinson Snider and Hazel Brown, a minor, and his divorced wife, Ida Brown, whom we shall call the proponent. On the 3d day of December, 1903, he executed a last will and testament in due form, whereby he devised all his estate, save the sum of $ 1,000 to each of his children, "to his wife Ida." This will was duly filed for probate, and the daughters filed objections to the probate thereof, claiming that, as Ida Brown was divorced from John H. in May of the year 1905, she ceased to be his wife, and could not take under the will; that in the divorce action the property rights of the parties was settled by the decree; that, by reason of changes and alteration of relations and conditions, the will was revoked, and no longer continued to be the last will and testament of the deceased. The contestants also pleaded:
That the possession of said last will and testament was by the proponent clandestinely preserved, and the alleged will itself preserved with the knowledge upon her part that the said decedent, John H. Brown, was informed and believed that said alleged will had subsequently to said action for divorce been physically destroyed in pursuance of the direction and intendment of said John H. Brown, deceased, at the time of the making, entering, and recording of said decree of divorce; that, by reason of the foregoing, the said alleged will was revoked by the said John H. Brown in his lifetime, and the proponent takes no property or property right thereunder, and has no such interest in the estate or property of the late John H. Brown as would authorize her to propose the will for probate.
In an amendment to the objections of contestants, they pleaded that, upon the making of the will, it was deposited with the wife, Ida, for safe-keeping, and that she kept it until filed for probate; that in the divorce action which was brought by the wife an agreement was entered into between the parties with respect to their property rights which was passed into the divorce decree, providing that certain money and property awarded to the wife, Ida, should be in full payment and satisfaction, and discharge of all her interest in and to the property of John H. Brown; that the money and property awarded to the wife were thereafter paid and delivered to her, and that deceased's obligations to his wife were thereby fully discharged. It was further pleaded that the wife knew of the provisions made for her in the will, and that deceased made the settlement of their property rights in the divorce suit, intending it to be an annulment, cancellation, and abrogation of the prior provisions made in the will, and as "a definement and limitation of the property to be received by the wife"; that, notwithstanding this knowledge on the part of proponent, she clandestinely and fraudulently preserved the will, and is now attempting thereby to defraud the estate of her former husband, now deceased. These facts are relied upon also as an estoppel. Proponent demurred to these objections for the reason that the facts therein stated do not operate as a revocation of the will, nor do they constitute an estoppel. This demurrer was sustained, and, contestants electing to stand upon their objections, the will was proved and admitted to probate. Appeal was thereupon taken to this court. These are the facts in the case in probate.
The other case is one in equity brought by the contestants in the probate court to set aside the probate of the will upon substantially the same grounds as were stated in the objections to the probate of the will. The defendants in that action pleaded the judgment of the probate court upon the demurrer, in bar of the suit, and maintain that the order admitting the will to probate is a complete and final adjudication of the matter in controversy. In addition to asking that the order admitting the will to probate be set aside, plaintiffs in the equity case ask that title to the property be quieted in them, and an order restraining Ida Brown and Arthur Hurtt from qualifying as executors, or in any manner interfering with the property left by the deceased. The equity case went to trial on the issues joined, resulting in a decree dismissing plaintiffs' petition. This decree was passed April 16, 1907, and at that time no appeal had been taken from the order in probate. The appeal in that case was taken April 27, 1907.
From this statement of the record it is manifest that, so far as the equity case is concerned, all matters which might properly have been determined in the probate proceedings were adjudicated by the order therein, and cannot again be litigated in the equity case. The only propositions which may be decided upon the appeal in that case are such as could not have been properly presented to the probate court as a reason for denying the probate of the will. This is fundamental doctrine sustained by Niemand v. Seemann, 136 Iowa 713, 114 N.W. 48; Smith v. James, 74 Iowa 462, 38 N.W. 160.
Any question, then, which goes to the validity of the will as a whole, or to the cancellation or revocation thereof, was determined in the probate action, and cannot be determined in the equity suit. The only questions which may be considered upon appeal in the equity case are these: Admitting that the will was properly admitted to probate, do the children of the deceased take thereunder anything more than the will gives them, or are they entitled notwithstanding the will to any greater share in the decedent's estate than the will provides they shall have?
In this connection they contend that the divorced wife, Ida, is not entitled to anything, because she does not answer the description in the will as "my wife Ida." She was testator's wife when the will was made, and, as the words used are merely descriptive, she was none the less the devisee and legatee in the will after her divorce. There is no conflict in the authorities on this proposition. Card v. Alexander, 48 Conn. 492 (40 Am. Rep. 187); Smith v. Greeley, 67 N.H. 377 (30 A. 413). So that Ida Brown is entitled to take under the will unless the bequests, devises, and legacies were satisfied as claimed by appellants' counsel. The will devised to the wife, Ida, all testator's real estate, including the homestead absolutely in fee simple. It also gave her all the personal property of every kind used in connection with the homestead, and, after giving each of the daughters $ 1,000 out of his personal property, provided that the wife should have the remainder.
Appellants contend that all these devises and bequests were satisfied or adeemed by reason of the provision made for the wife in the divorce action. The decree in that action made this provision:
The said plaintiff is entitled to, and is hereby allowed and granted, a judgment against the defendant for the sum of thirteen hundred and fifty ($ 1,350) dollars, $ 50 of which goes to the child. In addition thereto, the said plaintiff is entitled to and is hereby allowed and granted all of the household and kitchen furniture in the homestead of the parties, located at No. 310 First Street West, in the city of Cedar Rapids, Linn county, Iowa of whatever source and kind, together with all the beds and bedding therein contained, excepting the gas range in the kitchen of said homestead and the furniture, bed, and bedding necessary and proper for the furnishing of one bedroom. These last two items belong to defendant herein. It is further found, adjudged, and decreed that the defendant shall pay to plaintiff on the 17th day of May, A. D. 1906, and on each 17th day of May thereafter, until such child, Hazel, shall become of the age of eighteen (18) years, the sum of fifty ($ 50) dollars, the same to be used by said plaintiff in the support, clothing and education of said child, and that this charge of fifty ($ 50) dollars per year, in all aggregating the sum of three hundred and fifty ($ 350) dollars, is hereby made a lien on all real property now or hereafter belonging to said defendant, until the same is fully paid, and judgment is hereby rendered against said defendant for said sum of three hundred and fifty ($ 350) dollars, the same to cover the seven years intervening between this year and the year that said child, Hazel, becomes of age, . . . the household and kitchen furniture going to the plaintiff to include one piano now located in said residence. That the foregoing provisions for and in behalf of the plaintiff when paid and complied with by the defendant shall be in full payment, satisfaction, and discharge of all her interest in and to the property of the defendant.
Ademption is the extinction or satisfaction of a legacy by some act of the testator which is equivalent to a revocation of the bequest or which indicates an intention to...
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