Caldwell v. City of Ottumwa

• Decision Date: 17 October 1924
• Docket Number: 36189
• Citation: 200 N.W. 336,198 Iowa 666
• Parties: CLARA BELLE CALDWELL, Appellee, v. CITY OF OTTUMWA, Appellant
• Court: Iowa Supreme Court

200 N.W. 336

198 Iowa 666

CLARA BELLE CALDWELL, Appellee, v. CITY OF OTTUMWA, Appellant

No. 36189

Supreme Court of Iowa, Des Moines

October 17, 1924

Appeal from Wapello District Court.--W. M. WALKER, Judge.

SUIT in equity, brought by the plaintiff as surviving widow of Joseph S. Caldwell. She seeks to establish her right to a distributive share in certain real estate conveyed by her husband to the defendant city; such deed being regular in form, and purporting to be signed and acknowledged by the plaintiff, as the wife of Joseph S. Caldwell. She prays that her purported signature be declared a forgery, and that her right of distributive share be established accordingly. The defense was a general denial and a plea of equitable estoppel. There was a decree for the plaintiff herein. The value of her interest was fixed therein at $ 1,000. The defendant has appealed.

Reversed.

William A. Hunt, City Solicitor, for appellant.

E. R Mitchell, for appellee.

EVANS J. ARTHUR, C. J., and PRESTON and FAVILLE, JJ., concur.

OPINION

EVANS, J.

On or about September 10, 1920, the defendant, city of Ottumwa, purchased from Joseph S. Caldwell, a resident of St. Louis, Missouri, a certain tract of land for park purposes. Under date of September 10, 1920, Caldwell caused to be delivered to the defendant city a warranty deed, purporting to be duly signed and acknowledged by himself and Clara Belle Caldwell, his wife. The agreed consideration for the conveyance was $ 3,000, all of which was remitted to Caldwell by draft, about 10 days subsequent to the date of the deed. On November 10th following, Caldwell died, leaving the plaintiff as his surviving widow. He died testate, and his will was duly admitted to probate in Missouri. By his will, he devised substantially his entire estate to his widow, the plaintiff herein, and constituted her executrix, without bond. She accepted the provisions of the will in her behalf, and went into possession of the estate as executrix and sole beneficiary. The plaintiff averred in her petition that she never signed the deed under consideration, and never knew of the transaction. It does appear, however, that the city of Ottumwa had been in possession of the tract of land for many years, under a lease signed by the plaintiff and her husband, and that the same was in use as a public park. The resisting contentions of defendant may be summarized as follows:

1. It denies the forgery. In support of this denial, it relies upon the instrument itself, and upon the genuineness of the notarial certificate.

2. It asserts that the plaintiff received, immediately following the death of Caldwell, $ 2,200 of the identical funds received by Caldwell as consideration for the deed; that, if the funds so received by her were not the identical funds received from the city of Ottumwa, she did receive the same in the form of an enhanced estate, of which she was the beneficiary; that, if she is entitled to prevail herein, then the defendant city is entitled to recover damages to the full value of her interest from the estate, of which she is sole beneficiary; that the plaintiff withholds such right from the defendant, and makes no tender of equity; that she is not entitled in equity to profit by her husband's fraud; that her husband's estate, of which she is sole beneficiary, has a value of not less than $ 15,000; that the defendant is without remedy in this state against the fraud of the husband, unless the plaintiff be required to offer equity as a condition to obtaining equitable relief.

3. It asserts that, by accepting the provisions of her husband's will in her behalf, she has relinquished all right to her distributive share in her husband's estate, such being the statutory presumption of this state.

4. It asserts that the real estate in question was purchased by the defendant city for the purposes of a public park, and that the voluntary conveyance was a legal equivalent of condemnation proceedings; that, if the property had been taken pursuant to condemnation proceedings, the dower right of the wife would thereby be cut off, without notice to her; that the title acquired by the city in such a case by a voluntary conveyance is the legal equivalent of what it would have obtained by condemnation proceedings.

As to the defense of general denial, the trial court found the fact with the plaintiff. It is very true that a court of equity leans strongly to the verity of a genuine notarial certificate: were it otherwise, titles would become greatly unsettled and beclouded. Only very clear and satisfactory evidence can justify the contradiction of such certificate or a finding of falsity by the court. We think such evidence is present in this record, and that the finding of fact by the trial court at this point must be sustained. It appears indubitably that the plaintiff had been in the state of California from July up to the date of Caldwell's death. The deed in question purported to be signed and acknowledged in the city of St. Louis. We proceed to consider the case, therefore, upon the theory that the purported signature of the plaintiff to the deed in question was unauthorized.

I. It is made to appear that the plaintiff elected to take under her husband's will. What was the effect of such taking upon her right of distributive share? Can she take under the will, and at the same time claim any part of her distributive share as distinguished from what she takes under the will? Her rights, whatever they be in this case, must be predicated upon the statutes of this state. Under Section 3270, Code of 1897, the will of a testator is made subject to the right of a surviving spouse to claim her distributive share; "but where the survivor is named as a devisee therein [in the will], it shall be presumed, unless the intention is clear and explicit to the contrary, that such devise is in lieu of such distributive share, homestead and exemptions." There is nothing in the will of Caldwell to rebut this statutory presumption. The plaintiff herein was named as devisee therein. If only a part of the estate had been devised to her, she could not accept the same and at the same time claim a distributive share. Inasmuch as the whole estate was devised to her, is she in any better position both to accept the devise and to claim her distributive share? What is her "distributive share," as defined by the statute? It is defined by Section 3366, Code of 1897, as "one third in value of all the legal or equitable estates in real property possessed by the husband at any time during the marriage, which have not been sold on execution or other judicial sale, and to which the wife had made no relinquishment of her right." If the plaintiff is entitled to recover, it is because her right comes within the definition here set forth. If she does any act which amounts in law to a waiver of her right to a distributive share, she necessarily waives all of it. She cannot be said to have waived her distributive share in the property owned by her husband at the time of his death, and yet retain her distributive share in property previously conveyed by him without her signature. If the husband has wronged her by a previous disposal of real estate without her concurrence, he can offer amends by the provisions of his will, and she may accept the same, or stand upon her statutory rights, as she shall elect. She cannot take a devise which is in lieu of a distributive share and yet claim a distributive share. She has taken the devise. She is precluded thereby from claiming a distributive share.

It may be noted that the statute in force prior to the adoption of Section 3270 carried a contrary presumption from that which now obtains under the later section. Under the former statute, the first presumption obtained: that a devise to a surviving spouse was intended to be in addition to a distributive share, unless the contrary was made to appear in the will. This rule was changed by the enactment of Section 3270. In Thorpe v. Lyones, 160 Iowa 415, 425, 142 N.W. 82, we had occasion to consider this later section. We said:

"Under this present statute, if the widow accepts the provisions of the will, it is presumed from the act of acceptance that she elected to take the devise made to her in the will in lieu of her statutory rights. Under the statute as it now is, a widow is not bound to accept the bequest made to her in the will, but may reject the same and take her rights under the statute; but she cannot take both. The intention of the testator in making the devise is presumed to be in lieu of statutory rights; and when an acceptance is made under the provisions of the will, she is presumed to have accepted it in lieu of her other rights, and to have waived all right, under the law, to a distributive share. * * * From the present statutes, it appears: (1) That a devise to a wife is presumed to be made by her husband, in lieu of her statutory right, unless he, in his will, clearly and explicitly indicates that it is not in lieu of her statutory rights. (2) That, after she has notice of the terms of the will, she may elect to take, and take, either the devise made to her in the will, or she may reject the same, and take the portion of her husband's estate given to her by statute; but she cannot take both."

The statute is so clear in its terms in this regard that it leaves no room for doubt as to its construction. We hold, therefore, that the plaintiff unreservedly waived all right of distributive share when she accepted the provisions made for her by her husband's will.

II. Could the court, in its exercise of its equity jurisdiction properly require the plaintiff, as a condition to equitable relief, to restore to the defendant the money fraudulently received...