Allinson v. Horn, 49560
| Decision Date | 14 October 1958 |
| Docket Number | No. 49560,49560 |
| Parties | Idabelle ALLINSON, Appellee, v. Lorenz A. HORN, Executor of the Estate of John W. Allinson, Deceased; Defendant; and Arlene Jane Olson, Appellant. |
| Court | Iowa Supreme Court |
Lund & Lund, Webster City, for appellant.
Lundy, Butler & Lundy and Donald C. Wilson, Eldora, for appellee.
John W. Allinson and Idabelle Harrell were married on August 4, 1944. They were advanced in years. It was a second marriage for both parties, their respective spouses having departed this life. Mr. Allinson had a son and daughter and Mrs. Allinson three daughters, all over twenty-one years of age.
Mr. Allinson was the owner of a modest home and some household goods in Williams, Iowa. Mrs. Allinson had $2,000 in cash. She had all the furniture from her first marriage, which she brought to Williams and placed in the home. Part of the $2,000 was used for living expenses, but most of it was used for improvement and modernizing of the home.
In March 1946 both parties went to the office of Prince & Blakey, attorneys at Webster City, and prepared separate, but identical wills, each leaving all property to the surviving spouse. On June 1, 1953, without any notice to his wife, John W. Allinson went to the same law office at Webster City and prepared a new will. Mr. Prince had departed this life and Mr. Blakey had moved out of the state. The new will was prepared by Mr. Guthrie. Mr. Allinson did not tell him about the prior wills. In the new will he left one-third of his property to his wife, one-third to his daughter and one-third to his son.
Mr. Allinson departed this life July 20, 1955. The last will made by him was filed and probated and the new executor named by him was appointed. The only substantial property in his estate was the home at Williams which had an estimated value of from twenty-five hundred to three thousand dollars. There was no personal property except some modest household goods and a few personal effects.
Everett J. Allinson, the son of John W. Allinson, executed quitclaim deed to plaintiff as to any interest he had in the home. Plaintiff filed petition in equity against the daughter of Mr. Allinson alleging the two wills simultaneously executed were mutual and reciprocal wills, executed in accordance with agreement between the parties to leave all of his or her property to the surviving spouse and praying for quieting of her title to the home.
Upon trial the court entered findings and decree in favor of the widow. The daughter Arlene Jane Olson has appealed.
The only question in the case is whether there was sufficient evidence by competent witnesses to clearly and satisfactorily establish an agreement between Mr. and Mrs. Allinson to leave all property to the survivor under the identical wills executed by them.
I. Mrs. Allinson testified in detail as to the conversation between the parties in the law office at time of execution of the wills. Attorneys for appellant objected to her competency in accordance with Section 622.4, I.C.A. As to such conversation in the office at the time of the execution of the wills she was not a competent witness.
Mr. Blakey, the attorney, was one of the witnesses on the wills. Mrs. Pringle, secretary in the office, who prepared the wills testified. She was the other witness. She testified as to Mrs. Allinson's will (Exhibit A) as follows: . She stated she could not recall the conversation between the parties.
In addition to the testimony of Mrs. Allinson as to the conversation in the law office, not admitted in evidence, she also testified that about six months before the wills were made Mr. Prince was at Williams and called at their home. She heard a conversation between Mr. Prince and her husband, Mr. Allinson, in which she did not take any part. She was competent to testify as to this conversation. Hart v. Hart, 181 Iowa 527, 164 N.W. 849; In re Newson's Estate, 206 Iowa 514, 219 N.W. 305; In re Stencil's Estate, 215 Iowa 1195, 248 N.W. 18.
She stated that Mr. Allinson said to Mr. Prince: . Mrs. Allinson also testified: 'That is why we did have the two wills drawn.'
Mrs. Shirley Nell Harrell, daughter of plaintiff by her first marriage, testified she had a conversation with Mr. Allinson in 1949 when only the two were present. 'He told me he and mother had an understanding that if anything should happen to him everything he had would go to her and if anything happened to her everything she owned would go to him, but he realized that the things he had, her personal things, she would want to be given to us children, and he said he would give me her personal things such as her jewelry and hand painted dishes and things'.
Appellant objected to this testimony on the basis of the competency of the witness under Section 622.4. Mrs. Harrell was clearly competent to testify as to this conversation with her stepfather. Under such circumstances a daughter can testify as to the statements of a person since deceased. Bird v. Jacobus, 113 Iowa 194, 84 N.W. 1062; Tucker v. Anderson, 172 Iowa 277, 154 N.W. 477. We held In re Estate of Stratman, 231 Iowa 480, 484, 1 N.W.2d 636 that a son of claimant against an executrix is not incompetent under the statute.
The generally accepted meaning of the word 'understanding' in the context as used by Mr. Allinson is that this was an agreement. Oftentimes a layman would not use the somewhat legal term of 'agreement' or 'contract' but would call the 'agreement' between the parties an 'understanding'. 43 Words & Phrases, Understanding, pages 107, 108; Mitchell v. National Railway Building & Loan Ass'n, Tex.Civ. App., 49 S.W. 624; Barkow v. Sanger, 47 Wis. 500, 3 N.W. 16.
The substance of the above two opinions concerning the word 'understanding' appear in 43 Words & Phrases, supra, as follows:
Mitchell v. National Railway Building & Loan Ass'n, supra: "Understanding,' as used in testimony of a somewhat uneducated person to the effect that a deed was executed with a certain understanding, might safely be regarded as synonymous with 'agreement."
One of the definitions of 'understanding' in American College Dictionary,...
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