Schubert v. Barnholt
| Decision Date | 29 June 1916 |
| Docket Number | No. 30583.,30583. |
| Parties | SCHUBERT ET AL. (HOPE, INTERVENER) v. BARNHOLT ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Cass County; E. B. Woodruff, Judge.
The opinion states the case. The plaintiff appeals. Affirmed.George Cosson, Atty. Gen., for appellant.
H. M. Boorman, T. B. Swan, and Willard & Willard, all of Atlantic, for appellees.
C. B. Clovis and T. C. Whitmore, both of Atlantic, for plaintiffs.
Henry Barnholt died testate May 29, 1910, leaving him surviving a wife, Elizabeth Barnholt, and six children and four children of a deceased son. About 24 hours thereafter the widow died intestate, leaving as her heirs Wm. Schubert and another brother and the children of a deceased sister. The will of the decedent was admitted to probate, and, after directing the payment of debts and funeral expenses, provided that his personal and real property be held in trust by the executor--
“and the income therefrom devoted to the use and benefit of my beloved wife, Elizabeth Barnholt, her surviving me, during her life.”
Upon her death the property was to pass to his heirs in different amounts. Claus Barnholt, nominated in the will, was appointed executor. John Barnholt was appointed administrator of the estate of the widow, but, finding no property and no claims being filed, was discharged. The heirs of the widow ask that the executor of the estate of Henry Barnholt, together with the several legatees under the will, account for the dower interest or distributive share of the widow in the estate of her husband. David Hope, appointed administrator de bonis non of the estate of the widow, filed a petition of intervention, making substantially the same demand of the defendants. But two issues are presented here: (1) Whether Elizabeth Barnholt was ever the wife of decedent; and (2) whether she elected to take under the will.
[1][2][3] I. Every marriage is presumed to be valid, but the strength of that presumption depends on the circumstances of each particular case. In re Estate of Colton, 129 Iowa, 542, 105 N. W. 1008;Tuttle v. Raish, 116 Iowa, 331, 90 N. W. 66, Henry Barnholt married Elizabeth in 1877, and they lived together as husband and wife until his death, over 30 years. Though her brother left Germany 8 or 9 years before she did, he had heard nothing of a previous matrimonial venture. But Claus, a son of the testator by a former marriage, testified to having heard a conversation between his stepmother and his sister, some time, somewhere not stated, in which the former confided to the latter that she had a husband in the old country, by whom she had had one child, who was still living and not divorced, and that she left him because he treated her mean. When on the stand again he is reported to have testified that she said her first husband was divorced. This is said to have been due to an error by the reporter in omitting “not” before “divorced.” If so, the record should have been corrected by the trial court. We take the record as certified. But treating it as counsel say it should have been, we do not regard the evidence as sufficient to overthrow the strong inference in favor of the validity of the marriage. Evidence of the class adduced always is of doubtful value, as the witness may not have heard accurately, and, so remembering, and may not have repeated without change of language such as to modify the meaning intended of the declarant. Besides the witness was interested and was aware that there could be no contradiction by the deceased, and likely there would be none by the other interested person present, whatever the fact might be. The witness might not have understood or remembered or repeated correctly or never have heard. We are not ready to denounce the relation of these parents after its long enjoyment and general recognition on such testimony, even though reinforced by the story of another witness that somewhere at some time she had heard deceased say to the witness that she lost a child about 3 years old in the old country. The aspersions against the dead are not sustained by the evidence, and we find that Elizabeth was widow of the testator.
[4][5] II. Did Elizabeth Barnholt elect to take under the will of her deceased husband? On the day the will was signed the testator and his wife executed a deed conveying the homestead to his son, Henry, he giving his note for the purchase money, with mortgage securing same, but before she would sign the deed she exacted that she be given by his will a life estate in all his remaining property, and that thereafter it should pass to his children. Thereafter, and before his death, she expressed satisfaction with the will. What happened before his death cannot be construed to be an election to take under it for the reason that the husband and wife could not negotiate contracts between themselves concerning the right or interest of one in the other's property and the opportunity to elect did not then exist. In re Kennedy's Estate, 154 Iowa, 460, 135 N. W. 53;Berry v. Donald, 168 Iowa, 744, 150 N. W. 1048. But the circumstance that she was content with the terms of the will when made tended to show her subsequent attitude of mind toward it. Cook v. Lawson, 63 Kan. 854, 66 Pac. 1028. Subsequently the testator took his own life, and she died within a day afterwards. At that time she was 81 years of age, had not walked for several years, used a wheeled chair, and, as her physician says, was suffering from la grippe, complicated with endocarditis, She was much shocked by the death of her husband, but was of sound mind. Testimony of several witnesses, bearing on the issue of election, was adduced. Henry Barnholt testified that on the evening of his father's death, while he and his brother, Claus were carrying their stepmother from one room to another, Claus asked her if she was satisfied with the will, which she replied that she was, and that she added:
“Oh, Claus, father has provided...
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