Andrews' Estate, In re, 48448

• Decision Date: 04 May 1954
• Docket Number: No. 48448,48448
• Citation: 245 Iowa 819,64 N.W.2d 261
• Parties: In re ANDREWS' ESTATE. TRITLE et al. v. ANDREWS et al.
• Court: Iowa Supreme Court

Page 261

64 N.W.2d 261

245 Iowa 819

In re ANDREWS' ESTATE TRITLE et al. v. ANDREWS et al.

No. 48448.

Supreme Court of Iowa.

May 4, 1954.

Wm. W. Crissman, Cedar Rapids, for appellants.

Jordan & Jordan and Ernest F. Pence, Cedar Rapids, for appellees.

OLIVER, Justice.

Pearl W. Tritle and Burt E. Tritle made claim against the executors of the estate of Orville E. Andrews for $15,000, based upon decedent's promissory note to claimants. The executors pleaded lack of consideration for the note and want of delivery thereof. Upon trial the jury returned a verdict for claimants. From judgment allowing the claim, the executors prosecute this appeal. The main issue is the sufficiency of the evidence to support the verdict. In considering such sufficiency the rule requires that the evidence be considered in the light most favorable to claimants.

Decedent Orville E. Andrews and his wife Emma Andrews had lived on their farm in Linn County for many years. They owned another farm also. They had no issue. Claimant Pearl W. Tritle, the wife of claimant Burt E. Tritle, was a niece of Emma Andrews. In June, 1950 decedent Orville E. Andrews and his wife Emma moved to Marion, Iowa. Emma Andrews was taken to a hospital and died early in December, 1950. At that time Pearl Tritle moved into the home with decedent and cared for it until April 7, 1951. Burt Tritle lived there from December 23, 1950 to April 7, 1951. Orville E. Andrews died October 25, 1951.

About March 15, 1951, Mr. and Mrs. Kenneth Jordan called at the home in Marion. Claimants were absent. Decedent showed the Jordans a five page typewritten letter dated March 9, 1951, which they read. Decedent then signed the letter in their presence, handed it to the Jordans 'to witness,' and the Jordans signed it as witnesses. Decedent next showed the Jordans the note here involved, as follows:

'15,000

'on date of my death after date I promise to pay to the order of Pearl W. Tritle and Burt E. Tritle, as joint tenants and not as tenants in common Fifteen Thousand and No/Dollars at Marion, Linn County Iowa. Value received with interest at the rate of none percent per annum.

'Orville E. Andrews.'

Decedent placed the note and letter in an envelope, sealed it, and asked the Jordans 'to take it and keep it until after his death, and then give it to Pearl and Burt Tritle.' Mr. Jordan testified he understood he was to keep it for Pearl and Burt. The Jordans took the envelope and Mr. Jordan placed it in his lock box in the Alburnett Bank. About the middle of August, 1951, decedent asked Mr. Jordan if he could get the letter, 'stating that he would like to have it with some other papers he had in his desk at home, because it contained detailed information, quite a bit, about his funeral, how he wanted things done, etc.' Mr. Jordan went to Alburnett and got the sealed envelope 'and gave it to decedent.'

After decedent's death the sealed envelope was found in decedent's desk by Claire H. Andrews, who was later appointed an executor of the will of decedent. Upon the envelope was typewritten 'To Pearl and Burt.' Claire Andrews handed it to claimant Pearl W. Tritle. She opened it and found the note and letter.

The letter to 'dear Pearl and Burt', refers to plans decedent and Emma had made for the disposition of their property and the distribution of their estates. It contains directions to Pearl for decedent's funeral and for the disposition of various furnishings, etc., in the home. It refers to many services claimants had performed for decedent and his wife. With reference to their failing health and the sale of their two farms thereby necessitated, it states in part:

'You came to our farm every few days all winter long and shoveled snow, carried in cobs, coal and water to last for several days and, if we felt worse than usual, you came every day--bringing everything a person could want to eat. You did everything for us that anyone could wish for, often driving from 20 to 40 miles a trip--depending on where you lived.

* * *

* * *

'You run 'blind ads' in the Gazette and showed the farms to anyone interested, then they came to Marion and talked with us about them. We sold both farms and you folks did every bit of the work connected with it all.

* * *

* * *

'We figured we owed you folks several thousand dollars for work and expense you had been to for us during the past several years * * *.

'Besides a will is considered as 'gifts' and this money, we planned to pay to you, wasn't any 'gift' by any means--you had it worked out long ago. The reason we wanted you included in the will too was because we wanted to make that--a gift to you.

* * *

* * *

'* * * Emma is gone and we didn't get to do what we had planned. * * * we didn't get your 'pay' to you because the last farm wasn't sold until the day before Emma went to the hospital.

* * *

* * *

'I could take out extra bonds for you but Emma and I decided not to give you your 'pay' in bonds but give it to you in money, * * *. I've decided to give you a note for the amount Emma and I planned to pay you. This note has nothing to do with your share in the will or any bonds, even if I do decide later on to make out another will, because this note is in payment of what I owed you at Emma's death and everything else I might decide to do for you is a 'gift'. * * * I may not date the note because, if I should live a great many years, it could be outlawed, I'm afraid. I'm making it payable 'at my death' and I want you to turn it into Hervie Lockwood right away because I want this paid first--after my funeral expenses.'

There was evidence that when decedent and his wife were planning to move from the farm to Marion, decedent told Pearl Tritle, 'if you and Burt will promise to help us get to town and look after the farms I will see that you are well paid for it.' Burt Tritle testified: 'Well, when they had a lot of work they promised to pay us for it.' He was asked, 'Did you expert pay thereafter?' He answered, 'They promised they would pay us, yes.'

I. Appellants assign error to the order admitting decedent's letter in evidence, over their objections. One contention is the letter was incompetent as hearsay. This contention is without merit. The instrument in question was decedent's letter of transmittal which was enclosed with and accompanied decedent's promissory note and was explanatory of the transaction. Hence, it was admissible as part of the res gestae. See Carlson v. Bankers Trust Co., 242 Iowa 1207, 1216, 50 N.W.2d 1.

Another reason the statements in the letter were competent evidence in the action against the estate of the deceased writer, was, they were admissions by him. O'Neil v. Redfield, 158 Iowa 246, 250, 139 N.W. 555. Furthermore, declarations of a person since deceased, against an existing pecuniary interest by declarant, are admissible, as well in actions between third persons, as an exception to the hearsay rule. 31 C.J.S., Evidence, § 217, page 958. County of Mahaska v. Ingalls, 16 Iowa 81. In this state the doctrine is declared by statute. Section 622.27, Code of Iowa 1950, I.C.A., provides:

'The entries and other writings of a person deceased, who was in a position to know the facts therein stated, made at or near the time of the transaction, are presumptive evidence of such facts, when the entry was made against the interest of the person so making it * * *.'

Another contention of appellants is the letter 'is only a statement of intention or present feeling of the deceased, and not of any former fact.' The record is to the contrary. A letter of transmittal of a promissory note may not properly be thus characterized. In addition to directions for the funeral and the disposition of various household articles, etc., this letter is largely a recitation of pertinent historical facts in the lives of decedent and Emma and their decisions and acts based thereon. Among other things it states decedent and Emma 'figured we owed you folks several thousand dollars' and the $15,000 note is for the amount 'Emma and I had planned to pay you.'

Appellants contend also the statements in the letter that decedent owed the Tritles for things they had done for him, are legal conclusions which make the letter inadmissible. Apparently appellants refer to the statements: 'We figured we owed you folks several thousand dollars for work and expense * * *. This money we planned to pay to you * * *--you had it worked out long ago. * * * I've decided to give you a note for the amount Emma and I planned to pay you.'

We do not agree these statements are legal conclusions. But were they such, that would not have rendered them inadmissible. Helberg v. Zuck, 201 Iowa 860, 863, 208 N.W. 209, 210, states:

'The action is to charge him, not a third person. His admission is not rendered inadmissible against himself, because of its being his conclusion or based on hearsay.' (Citations.)

The text in 31 C.J.S., Evidence, § 219b, page 963, states:

'Thus the declaration is admissible where it amounts to an acknowledgment of declarant's indebtedness to others, * * *.'

We hold the order overruling appellants' objections to the admission in evidence of the letter, was correct.

II. Another assignment of error is based upon the asserted insufficiency of the evidence to warrant a finding of sufficient consideration for the note. We are satisfied the proof furnished by decedent's letter alone, is sufficient for that purpose. The letter makes it clear decedent recognized his liability and gave the note in the amount Emma and he had agreed he owed claimants for their services prior to the death of Emma. In addition there was evidence decedent promised in advance to pay claimants for some of the services rendered and also evidence claimants expected pay.

It is contended there is a presumption the services rendered decedent by claimants during the period from December, 1950 to April, 1951, were gratuitous because claimants were members of...