Baker v. Syfritt

• Decision Date: 09 April 1910
• Citation: 125 N.W. 998,147 Iowa 49
• Parties: BAKER v. SYFRITT ET AL.
• Court: Iowa Supreme Court

147 Iowa 49

125 N.W. 998

BAKER

v.SYFRITT ET AL.

Supreme Court of Iowa.

April 9, 1910.

Appeal from District Court, Pottawattamie County; A. B. Thornell, Judge.

Action in equity for the partition of real estate. The cause was submitted and decided upon the pleadings filed and a statement of agreed facts. Decree for defendants, and plaintiff appeals. Affirmed.Kimball & Peterson, for appellant.

W. S. Baird and McKenzie & Howell, for appellees.

WEAVER, J.

On September 21, 1889, John Baker and Harriet Baker were husband and wife, residing in Council Bluffs, Iowa. There were no children of this union, but the wife had children by a former marriage. John Baker then held in his own name the legal title to 40 acres of land and to the homestead property occupied by them, while the wife held in her own name the legal title to another 40-acre tract. They were well advanced in age, and on the day named united in the execution of a joint will. It is drawn in formal terms, and, omitting provisions not directly involved in this controversy, its three principal paragraphs are as follows:

“Item first. All our property being held by us jointly, share and share alike, both real and personal, it is our wish that the one of us surviving shall hold the same and have the use and benefits thereof, and rents and profits arising therefrom, during the period of his or her natural life, and it is accordingly by us so bequeathed and devised unto the survivor of us during the period of the survivor's natural life. * * *

Item third. After the death of the survivor of us, as aforesaid, it is our wish that the property on McPherson avenue, in the city of Council Bluffs, Iowa, more particularly described as a part of lot 2 in subdivision of southeast quarter of northeast quarter of section 30, township 75 N., range 43 west, which is the homestead on which we now reside, together with building adjoining, should become the property of Belle Syfritt, of Kansas City, Missouri, daughter of our niece, Belle Burton, during her life, and we do therefore devise the property aforesaid to her, the said Belle Syfritt, for her use and benefit during the period of her natural life, with remainder at her death to her children. If she die without issue surviving her, then remainder to our residuary legatees hereinafter named. * * *

Item sixth. After the death of the survivor of us, and after the payment of our debts and after the payment of the two bequests above set forth, it is our wish that the rest, residue and remainder of our estate, real and personal, left thereafter, shall descend and rest in our beloved children W. J. Westrip, J. H. Westrip and F. G. Westrip of Council Bluffs, Iowa, share and share alike in fee simple and we do so devise and bequeath the same.”

Harriet Baker died in November, 1900, and soon thereafter her husband caused the joint writing above mentioned to be probated as her last will and testament, and was appointed administrator with will annexed to her estate. He took and held the possession and enjoyed the use, rents, and profits of all the property and estate left by his said wife, and continued therein during the remainder of his life. He appears to have made no objection to the will, or to any of the provisions thereof, nor did he ever file a statement of his consent thereto or an election to take under the will, unless the filing of the joint will with his signature thereto may be construed as such consent. No notice to make an election was ever served on him. In July, 1901, he married the plaintiff herein, Rachel Baker, and in February, 1908, died. He made no other will than was contained in the joint instrument above mentioned, and this was duly admitted to probate as his last will and testament.

The petition herein alleged that John Baker died seised of the 40-acre tract and homestead property of which he held the legal title, and of an undivided one-third interest in the 40 acres of which his former wife held the title, and that plaintiff as his surviving widow is now entitled to have set off to her one-third in value of all said property. To this proceeding she makes the heirs of John Baker and Harriet Baker and the beneficiaries under their joint will parties defendant, and asks to have the property partitioned accordingly. The defendants answer, denying that at the time of his marriage to plaintiff, or at any time thereafter, John Baker owned any right or interest in the real estate mentioned in which plaintiff obtained, or could obtain, a right of dower or right to a distributive share after his death. They pleaded the making of the joint will, the probating thereof at the instance of John Baker, and allege that by filing said joint instrument with his own signature thereto, and without objecting thereto or repudiating its terms, he consented to take under said will. They further allege and claim that, while testamentary in form and in some of its effects, said joint instrument constituted a valid contract between the husband and wife for the present transfer of their common estate to the beneficiaries named therein, reserving to themselves and to the survivor of them a life estate in all said property, and that upon the death of Harriet Baker and the probate of her will without objection made thereto by the said John Baker, and his acceptance of the benefits of the provision thereof made in his favor, said contract became irrevocable, and that thereafter he could not make any valid conveyance or devise inconsistent with said will, nor could he by marriage with plaintiff confer upon her any interest in said property or estate which would defeat in whole or in part the terms of said contract. It is further alleged that by virtue of said contract between the husband and wife, and by the acceptance by said husband of the benefits thereof after the death of the wife, all of said property became and was in his hands a trust fund for his use during his life, and for the preservation of the principal thereof for the benefit of the named beneficiaries at his death, and that said trust was in fact accepted and performed by him. Plaintiff took issue by reply to the affirmative matters set up in the answer. The court held with the defendants upon the law of the case, and plaintiff appeals.

It will be observed that the pleadings state much in the nature of mere legal conclusions, but as it serves to make clear the position taken by the respective parties, we have set it forth with some degree of particularity. The question thus presented is a novel one in this jurisdiction, and the industry of counsel on either side has not been fruitful in the discovery of many precedents directly in point. The subject of joint and mutual wills has been quite frequently before the courts, and while there have been some decisions and more frequent dicta to the effect that such an instrument is unknown to the law, the greater weight of authority and the better reason is with the view that the joint or mutual character does not of itself affect its validity, and that, if otherwise valid, it may properly be probated and enforced as the will of the one first dying or the separate will of each, or as the joint and mutual will of both according to the nature and terms of the provisions embodied therein. Of the cases denying the validity of such wills perhaps the most elaborately considered by a court of our own country is Walker v. Walker, 14 Ohio St. 157, 82 Am. Dec. 474, where the authorities usually relied upon as supporting that view are very generally cited and approved, though by a divided court. The other, and at this time the most commonly accepted, view finds support in numerous cases, among which we may cite Ex parte Day, 1 Bradf. Sur. (N. Y.) 476; Will of Diez, 50 N. Y. 88;Betts v. Harper, 39 Ohio St. 639, 48 Am. Rep. 477;Will of Davis, 120 N. C. 9, 26 S. E. 636, 38 L. R. A. 289, 58 Am. St. Rep. 771;Dufour v. Periera, 1 Dick. 421; Schumaker v. Schmidt, 44 Ala. 454, 4 Am. Rep. 135; Breathitt v. Whittaker, 8 B. Mon. (Ky.) 530; Raine's Case, 1 Swa. & T. (Eng.) 144; Black v. Richard, 95 Ind. 184. And see 1 Jarman on Wills, 27; Schouler on Wills (2d Ed.) § 457. When such wills are reciprocal merely--that is, where the provision is that the survivor shall succeed to the estate and interest of the first to die--there is ordinarily little or no room for doubt concerning the construction or effect of the instrument, and, generally speaking, its probate as the will of the first deceased is all that is necessary to accomplish the intended purpose. When, however, such joint will undertakes to devise an estate to a third person, the solution of the question is not always quite so obvious. Where the makers of the will own and hold property in severalty, and none jointly or in common, the devise, though joint in form, may well be treated as the separate and individual devise of each, and successively admitted to probate as such. But where the property devised is owned jointly or in common, it has been held that, while the will is admissible to probate as the separate will of each, it is proper to await the death of the survivor, and then admit it as the joint will of both. Betts v. Harper, 39 Ohio St. 639, 48 Am. Rep. 477.

The validity of the will now before us is not seriously questioned, but the claim is made by appellant that, conceding the validity in other respects, it did not affect the title or interest of John Baker in the land during his lifetime; that it was at all times revocable by him, and that, being seised of the title at and after the date of his marriage with plaintiff, her right of dower therein cannot be affected by the devise made in the will. Upon the point thus made hinges the disposition of this case. While the legal title to the lands in controversy was held by John Baker and Harriet Baker in severalty, they declare in express terms that they were in fact owners of it all jointly, or in common and equal right....