Bakke v. Bakke
| Decision Date | 08 May 1951 |
| Docket Number | No. 63,63 |
| Citation | 242 Iowa 612,47 N.W.2d 813 |
| Parties | BAKKE v. BAKKE et al. |
| Court | Iowa Supreme Court |
Holliday & Myers, Des Moines, for appellant.
Clough, & Clough, Mason City, Nels W. Brandstad, Forest City, for appellee.
Plaintiff seeks to cancel and rescind a certain agreement between plaintiff and defendant, under which objections to the probate of the purported will of Annette Bakke were withdrawn and probate granted. The grounds for such cancellation are: (1) mutual mistake of fact, and (2) fraud on the part of defendant. The trial court granted the relief, as prayed; and defendant appeals.
Plaintiff and defendant are brother and sister and the only children of Martin and Annette Bakke, both deceased. Martin Bakke died testate in 1922; and his will was admitted to probate in Winnebago County, November 20, 1922. It provided in part as follows: Annette Bakke qualified as executrix and administered the estate.
The assets of the estate included a home, money in the bank, and some notes and mortgages. Two notes, face value $19,000, were secured by a mortgage upon a tract of land herein referred to as the sixty-acre tract. In 1923, under approval of the court, these notes and mortgages were cancelled in exchange for a warranty deed to the premises, Annette Bakke being named as the grantee. In November, 1924, the final report of Annette Bakke, executrix, was approved and the estate closed. The report stated in part as follows: 'And this executrix says that this estate has been fully and finally administered; and that she has, under the terms of the will, taken possession in her own right of the assets of this estate to which she is entitled so long as she remains a widow and that such distribution of the estate is in accordance with the terms of the will and has been approved by the other heirs, who file waivers of notice and consent to the approval of this report.' Annette Bakke continued until her death in June, 1947, to have sole charge of and benefit from the assets of the estate, including the sixty acres. She never remarried.
On June 2, 1947, Loleta Bakke, defendant, filed for probate in Winnebago County a purported last will of Annette Bakke, deceased, dated August 22, 1946. By its terms the sixty acres went to A. L. Bakke, plaintiff, during his life; then to the heirs of his body and, if none, then to Loleta Bakke. She received the balance of the property. Annette Bakke had no property other than that which was obtained through the Martin Bakke will.
On July 2, 1947, A. L. Bakke filed objections to the probate of the Annette Bakke Will alleging undue influence on the part of Loleta Bakke; an agreement with Annette Bakke in 1926, whereby she was to will the sixty acres to him; and also offering for probate a will signed by her in 1944, under which he received the sixty acres and Loleta the balance of the estate.
On September 2, 1947, the agreement of settlement, the subject of this litigation, was executed by A. L. Bakke and Loleta Bakke. It provided that A. L. Bakke would pay to Loleta Bakke $2,250.00 in exchange for a warranty deed from Loleta Bakke, conveying to him all her title and interest in and to the sixty acres, specifically releasing and conveying any interest she acquired under the Annette Bakke will, dated August 22, 1946. All the rest of the property was released to Loleta Bakke, she to pay all debts, charges, and claims against the estate. Conveyances and releases were executed, the money paid, objections to the will withdrawn; and the will was admitted to probate on December 3, 1947. A. L. Bakke took immediate possession of the sixty acres.
On March 10, 1948, this action was commenced to cancel the above settlement. The pleadings are voluminous, fifty-two pages of the record; and we do not attempt to set them out. Plaintiff states that he never saw the will of Martin Bakke, deceased, nor knew the terms thereof until about January, 1948; that when he made the settlement, he was entirely mistaken as to the true facts with respect to the estate and properties of Martin Bakke, deceased, and his will, and as to the estate and properties of Annette Bakke. He further alleged, 'That Loleta Bakke was also misinformed as to the true terms of the will of Martin Bakke and of the property and right of Annette Bakke in the property received under the Martin Bakke will, and that the parties were mutually mistaken as to the facts with respect to the property and will of Martin Bakke at the time the settlement was made.' Loleta Bakke, by answer, denies she was mistaken as to the facts of the will of Martin Bakke; denies that A. L. Bakke was ignorant of the terms and conditions of the Martin Bakke will; asserts negligence upon the part of A. L. Bakke, also laches and Statute of Limitations. Plaintiff, by amendment, pleads that Loleta Bakke, knowing of the will of Martin Bakke and its terms, perpetrated a fraud by concealing the same from him. At the trial, A. L. Bakke was a witness for himself and offered the testimony of one other witness to the effect that certain improvements had been made by A. L. Bakke on the sixty-acre tract. No testimony was offered by Loleta Bakke.
The trial court stated in its Findings of Fact and Conclusions of Law that, under the pleadings, it is to be assumed that Loleta Bakke did know the contents of the Martin Bakke will; but the court was of the opinion that there was a mutual mistake; and if it was a mutual mistake of fact, the agreement should be set aside. That the court is satisfied that plaintiff did not know the contents of his father's will. That if, as defendant alleges, there was no mutual mistake of fact; then if she knew the contents of her father's will and concealed the same from plaintiff, it was a fraud upon him. In the Conclusions of Law, the court states: 'That at the time of the drawing of the agreement * * *, the parties hereto were either mistaken as to the facts contained in the father's will or the defendant was guilty of fraudulent concealment of the facts from the plaintiff.' (Italics added).
Both appellant and appellee devote considerable time to the question whether the will of Martin Bakke created a fee or a life estate in Annette Bakke; as to whether Annette Bakke had title to the sixty acres by adverse possession; laches on the part of plaintiff and the Statute of Limitations. While these are all very interesting questions, we do not deem it necessary to consider them in the determination of the question before us.
I. Appellant asserts that there was no mutual mistake of fact, and we are inclined to agree. The law is well settled that for a recision of a contract on the basis of a mistake of fact, such mistake must be mutual, barring fraud and other elements later to be considered. 19 Am.Jur. Equity, Section 57; Wilson v. Wyoming Cattle & Investment Co., 129 Iowa 16, 105 N.W. 338; Jordan v. Brady Transfer & Storage Co., 226 Iowa 137, 284 N.W. 73; Connecticut Mutual Life Ins. Co. v. Endorf, 220 Iowa 1301, 263 N.W. 284.
Appellant denied appellee's allegation in the petition that she was mistaken as to the terms of the father's will. The burden was upon him to sustain this allegation if a recovery, on this basis, is to be had. Not one word of proof was offered by appellee in the trial court and to find that the mistake of fact, terms of father's will, was mutual is to assume as true a material allegation of the petition which is denied by the defendant and on which no testimony is offered. But even assuming such a fact, under the record we are unable to agree with the trial court that appellee has established the fact of his ignorance of the terms of his father's will.
Appellee is 63 years of age, above the average in education, and holds a...
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