Berry v. Donald

• Decision Date: 12 February 1915
• Docket Number: No. 30031.,30031.
• Citation: 168 Iowa 744,150 N.W. 1048
• Parties: BERRY ET AL. v. DONALD ET AL.
• Court: Iowa Supreme Court

168 Iowa 744

150 N.W. 1048

BERRY ET AL.

v.DONALD ET AL.

No. 30031.

Supreme Court of Iowa.

Feb. 12, 1915.

Appeal from District Court, Van Buren County; D. M. Anderson, Judge.

Action for partition. The parties to the case are all direct heirs of Catherine Donald, widow of John Donald. The real property involved was owned at the time of his death, by John Donald, who died testate. His will devised a life estate to his wife, Catherine, and the remainder to his three sons, subject to special bequests in favor of the three daughters. The daughters and their representatives are the plaintiffs. They aver that their mother, Catherine, died seised of an undivided one-third of the property; the same being her distributive share under the statute. The defendants contend that the mother, Catherine, accepted the provisions of the will in her behalf, and obtained all the benefits therein provided for her, and that she did so intending to take under the will, and that she thereby elected to take under the will, and was estopped thereby to claim a distributive share under the statute. The trial court found with the plaintiffs and entered decree accordingly. The defendants have appealed. Modified and affirmed.Leggett & McKemey, of Fairfield, and Walker & McBeth, of Keosauqua, for appellants.

Work & Irish, of Keosauqua, for appellees.

EVANS, J.

[1][2] John Donald died testate in June, 1899, and left surviving him his widow and six children. His property consisted in the main of a farm of 260 acres. At the time of his death his three sons were aged, respectively, 38, 29, and 25 years. They were occupying and working the farm. For the last 20 years of his life the testator had been practically blind, and had been quite dependent upon his sons for the operation of the farm. Each of them continued at home, after arriving at majority, without other compensation than board and clothes and a horse and buggy. About a year or two before his death, the testator and his wife moved from the farm to town, and there they continued until his death. The will of the testator gave to his wife a life estate in all the property and all the remainder to the sons, subject to bequests of $1,000 each to be paid to the three daughters. Immediately after the death of the testator the widow moved back to the farm and lived there with her sons, or some of them, until the date of her death in January, 1913. For the greater part of this time one of the sons, with his family, occupied the old home, and the other two sons built other homes near by upon the property for their own occupancy. She lived more or less in each home at different times; the sons at this time having families of their own. She appears to have been a useful, if not necessary, member of the household at each place. It so happened that the mother in each family was taken by death, and that the vacant place was temporarily filled in each case by the grandmother. This is the general character of the testimony, which is relied on to show that she went into the possession of her life estate under the will and received its benefits. The final contention (not made in their opening argument) for appellants is that the case is identical in its material facts with Arnold v. Livingston, 157 Iowa, 677, 139 N. W. 927, and that it is ruled by the holding in such case. The holding in the cited case was that the fact of an election by the widow might be proved by other evidence than the record of the court, and that such election could be thus made by the widow without waiting for the service of notice upon her. If the rule were otherwise, and if it were legally impossible for a widow to elect, except in the special manner pointed out in Code, § 3376, then she could never elect upon her own initiative, but must always await the initiative of some other party in interest. Granting the rule as here stated, it quite goes without saying that the evidence of such an election to take under a will in lieu of her distributive share should be clear and satisfactory. In the Arnold Case such was the evidence. Such election was shown not alone by the declarations of the widow, but also by the substantial fact that she took possession of the property devised to her for life, and that she appropriated to herself its full benefits during her lifetime. This latter evidence was not only competent and persuasive of an intentional election, but it had in it also elements of an estoppel.

The record before us contains evidence of many casual declarations of the widow to third parties to the effect that she had refused to contest her husband's will at the request of her daughters, and that she was satisfied with her husband's will, and that she wanted the property left as her husband had left it. Testimony of this nature is usually indefinite and unsatisfactory, and the evidence before us is not an exception to such general rule. A court would not be warranted in resting title to property upon such testimony alone. It is contended, however, that this testimony is supplemented by the fact that the widow did enter into...