Burk v. Morain
| Decision Date | 06 April 1937 |
| Docket Number | 43842. |
| Citation | 272 N.W. 441,223 Iowa 399 |
| Parties | BURK v. MORAIN et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Greene County; M. E. Hutchison, Judge.
I. J Burk commenced this action in equity to set aside the probate of the will of Susan E. Morain and to declare the same void on the grounds of incompetency and undue influence; to confirm a lien against the interest of a son in certain real estate owned by Susan E. Morain at the time of her death, by reason of a deed of assignment executed by the son, Colonel E. Morain, prior to his mother's death, as security for a note he owed Burk. Defendants filed a motion to dismiss on the grounds that Burk was not possessed of such an interest in the estate that would permit him to contest the will. The lower court sustained the motion and dismissed the case. Burk has appealed. The opinion states the facts.
Affirmed.
Graham & Graham, of Jefferson, for appellant.
Charles E. Hird, Francis L. Cudahy, and R. G. Howard, all of Jefferson, for appellees.
I. J Burk commenced this action in equity to set aside the probate of the will of Susan E. Morain and to declare the same void on the grounds of incompetency and undue influence. In his petition he alleged that Colonel E. Morain is a son of Susan E. Morain, deceased, and, as one of the seven children and heirs at law, he would be entitled to inherit one-seventh of her estate if it had not been for the will executed by his mother. He further alleged that on the 12th day of May, 1921 Colonel E. Morain, together with his wife, Minta Morain, made, executed, and delivered to him their certain written deed of assignment, by the terms of which they did assign to him as security for a certain sum of money, to wit, $1,165.87, all of their undivided interest and right of inheritance in and to certain real estate described therein and at that time the property of Susan E. Morain, the mother of Colonel E. Morain, and that she retained title to said real estate until the date of her death on the 7th day of June, 1933; that the assignment had been duly filed for record in the office of the county recorder of Greene county on the 13th day of May, 1921. Burk then alleged that the will of Susan E. Morain was admitted to probate, but he had no knowledge or notice of said proceeding, and that the time the said pretended last will and testament was executed, to wit, December 24, 1932, the said Susan E. Morain was incompetent and of unsound mind. Under the terms of the said will, Colonel E. Morain was disinherited, and the property which had been assigned to the plaintiff as security for the money he had loaned was left to others. The plaintiff therefore prayed that the order admitting the paper, instrument, or document purporting to have been signed by Susan E. Morain as her last will and testament be set aside, canceled, and held for naught; that it be founded, determined, and adjudged that the said Susan E. Morain was of such unsound mind and so incompetent as to be unable to declare and publish the purported will to be her last will and testament; that it be adjudged and decreed that the estate of Susan E. Morain descend to the children and heirs at law, in the manner and form as provided by law as if she had died intestate.
The defendants filed a motion to dismiss, setting up certain grounds, including the following: That said action was not brought by an heir at law or person entitled to inherit from the said Susan E. Morain, deceased, but was brought by an alleged creditor, who had no right in law or in equity to contest the will of said decedent as a creditor of an heir at law.
The trial court sustained the motion to dismiss. Plaintiff in open court elected to stand on the petition as filed and refused to plead further. Judgment was accordingly entered, and the plaintiff has appealed to this court.
The question which confronts us here is whether or not the deed of assignment executed by Colonel E. Morain to I. J. Burk creates in Burk such a right, title, or interest in the estate of Susan E. Morain as would permit him to contest the will.
The appellant concedes that an action to set aside the will can only be brought by one who has such a beneficial interest in the property of the estate that, if the will be set aside, he may avail himself of such interest. In other words, it would be without effect to permit one who had no interest in an estate, to contest the will. It is appellant's claim that, if the will is set aside, the deed of assignment will be operative against the interest of Colonel E. Morain in the estate of his mother, Susan E. Morain.
The question is an exceedingly interesting one, and one upon which the authorities are in conflict. However, we are not without precedent in Iowa in regard to it.
In the case of Gannon v. Graham, 211 Iowa, 516, at page 519, 231 N.W. 675, 676, 73 A.L.R. 1050, the late Justice Morling, speaking for the court, said:
And, 211 Iowa, 516, at page 526, 231 N.W. 675, 679, 73 A.L.R. 1050:
" In the case of an assignment of mere expectancy, at least when not assented to by the ancestor, no present existing property right in the assignor exists or is assigned. The assignor may die in the ancestor's lifetime. In such case his heirs would take not from him but from the remote ancestor. 18 C.J. 817; McAllister v. McAllister, 183 Iowa, 245, 167 N.W. 78.A will may be made disinheriting him. The estate itself may in the ancestor's lifetime be dissipated. The assignor in these conditions can have not even a potential interest in the estate. He has an expectancy or possibility only. If the assignment is made and received in good faith for an adequate consideration and without fraud, and is not otherwise unconscionable or invalid, equity will sustain and enforce it as a contract, to assign. In the case before us, however, the purported contract could in no event be given effect other than as a contract to assign. Such assignment is, therefore, executory only and subject to contingencies and...
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