Anderson v. Anderson

• Decision Date: 16 November 1917
• Docket Number: 31436
• Parties: ALFRED ANDERSON et al., Appellants, v. AXEL ANDERSON et al., Appellees
• Court: Iowa Supreme Court

164 N.W. 1042

181 Iowa 578

ALFRED ANDERSON et al., Appellants, v. AXEL ANDERSON et al., Appellees

No. 31436

Supreme Court of Iowa, Des Moines

November 16, 1917

Appeal from Winnebago District Court.--M. F. EDWARDS, Judge.

SUIT in equity to quiet title to real estate. Trial to the court petition dismissed, and plaintiffs appeal.

Affirmed.

H. A Brown and Constant Larsen, for appellants.

Thompson & Loth, for appellees.

WEAVER J. GAYNOR, C. J., PRESTON and STEVENS, JJ., concur.

OPINION

WEAVER, J.

Carl O. Anderson and Anna Elizabeth Anderson were husband and wife. In the year 1903, having reached mature age and being childless, they each made a will naming the other as sole beneficiary thereof. The two wills are identical in form in all respects except in date, that of the wife bearing date July 10, 1903, and that of the husband, August 15, 1903. The husband died March 27, 1910, and his will was admitted to probate. The wife died December 18, 1910, and her will was also admitted to probate. The plaintiffs are the heirs at law of the husband, and defendants are the heirs at law of the wife. The petition states the facts above recited, alleges that, under and by virtue of the wills of Carl O. Anderson and Anna Elizabeth Anderson, and of the laws of Iowa applicable to such case, plaintiffs are vested with all the estate of which the latter died seized or possessed, and asks to have such title confirmed in them. The defendants admit all the facts stated in the petition, but allege that the wills were mutual and reciprocal, constituting together a single act or transaction on the part of husband and wife, for the purpose of vesting all their property, whether joint or several, in the survivor of them; and that, upon the death of the husband without revocation of the will upon the part of either, the purposes of their reciprocal devises were fully accomplished by the vesting of all the property of the husband in the widow, and the will which had been made by her for the benefit of the husband in case he should survive her became null and of no effect. They further aver that, as to all of the property in controversy, the said Anna Elizabeth Anderson died intestate, and that they, as her heirs at law, have succeeded to her title, which they ask to have confirmed in them.

The parties stipulated in the trial court to submit these issues for decision upon the pleadings in the case and probate records in the matter of the estate of Carl O. Anderson, together with the affidavit of J. E. Anderson, which was to be treated and considered as a deposition, but subject to all proper objections which might have been urged to the matters testified to by the witness had such deposition been taken in due form. The affidavit so admitted to the record is as follows:

"State of Iowa, "Winnebago County ss.

"I, J. E. Anderson, being first duly sworn do on oath depose and say that I am personally acquainted with Anna Elizabeth Anderson and Carl O. Anderson, husband and wife, during their lifetime. That some time during the year 1903 they desired to make their wills, and they consulted me several times in this connection. They were without children, and about forty-five years old. Their property was ostensibly owned by him, but they owned and occupied a farm near Forest City, which was their sole source of income, and operated it together. Mrs. Anderson came to my office several times, and told me that she and her husband had agreed to will their property so that whoever outlived the other was to acquire the whole, and asked if it could be done that way. Later, Mr. Anderson came in, and told me that they had agreed to make a will which would give all their property to the one that lived longest. Both told me that they would dispose of their property in this way; that they wanted me to draw up wills in order that this agreement might be effectuated. I was and am an attorney-at-law. They usually came in separately, because one or the other had to stay on the farm, where they lived alone. I think that they came in together once, at least. I had several conversations with both parties. They expressed no desire, intent or agreement that any property was to go to either of their heirs, but said the bequest to the survivor was final.

"Early in July, 1903, I drew up two wills in identical terms, whereby each left all his property to the other. One will was signed by Anna Elizabeth Anderson on July 10th, 1913. I told her it was the will I had prepared in accordance with her instructions and the agreement of her and her husband. She said that was right, and that her husband would come in and sign up soon, but he was sick that day.

"About Aug. 15th, 1903, Mr. Anderson came into the office, asked for and signed the will I had prepared for him. I told him also that it was the will that was drawn to meet the agreement between him and his wife. I prepared two wills because it was difficult for both to come to town at once to sign, because I thought it the simplest and clearest way to express their desire.

"Duly verified."

The plaintiff objected to the competency and materiality of each and all of the matters shown by the affidavit. The trial court found and held that the wills in question were the mutual and reciprocal wills of the husband and wife, constituting together a single transaction, which could be given effect but once, and that, upon the admission of the will of Carl O. Anderson to probate, the purpose of both wills was satisfied and accomplished, and that Anna Elizabeth Anderson died intestate, leaving the defendants, her only heirs at law, vested with the sole right to succeed to her estate. From the decree entered to this effect, the plaintiffs have appealed.

Counsel for appellants contest very vigorously the proposition that the wills were mutual, and especially deny the correctness of the court's conclusion that Anna Elizabeth Anderson died intestate. It is their contention that Mrs. Anderson died testate, and that her will, hereinbefore mentioned, should be given effect according to the statute (Code Section 3281), which provides that:

"If a devisee die before the testator, his heirs shall inherit the property devised to him, unless from the terms of the will a contrary intent is manifest."

The argument is addressed to two propositions: First, that the testimony of J. E. Anderson, the scrivener who drew the wills, is inadmissible for any purpose, and constitutes an attempt to amend or change a will, the meaning of which is clear upon its face; and, second, that plaintiffs' right to the benefit of the devise in the will of the wife is conclusively fixed by the statute above quoted.

I. It may be conceded that extrinsic evidence is inadmissible to vary or change the terms of a will or to make another and different will for the testator, but this does not mean that evidence may not be admitted to show the circumstances which accompanied or attended the making of the instrument, or to identify the papers or writings which in fact constitute the will of the deceased. Lorieux v. Keller, 5 Iowa 196; Huston v. Huston, 37 Iowa 668; Bradbury v. Jackson, (Me.) 54 A. 1068. And this is especially true where, as in the case at bar, it is claimed that two or more writings made at or about the same time are part of a single transaction, and together constitute in law a single will. In such case, resort may be had to all papers of a testamentary or contractual character which entered into the transaction, if any, out of which or in pursuance of which the will was made. See Murphy v. Black, 44 Iowa 176. The cited case is quite in point, both in its facts and in the rule of evidence there applied. Under that rule it was entirely competent in the present case for the appellees to show, if they could, the execution of both wills, and the circumstances, if any, tending to show their mutual or contractual nature. That such testimony tends not to destroy the will of the deceased or to change or vary its terms, but rather to designate and identify the entire instrument, is obvious. The will which the rules of evidence contended for by appellants are intended to protect against extrinsic evidence, is the will as an entirety, and if its terms are to be found or deduced from two or more written parts, it is this completed instrument to which we must look to get at the testamentary intent. In the Murphy case, as in this case, the plaintiff planted his claim of right upon the will of a deceased wife, and there, as here, the defendants denied the effectiveness of the alleged will, saying that such will and a will made to the wife by the plaintiff were made and executed at the same time and as a single transaction; that by said wills plaintiff and his wife devised...