Campbell v. Dunkelberger

• Decision Date: 18 June 1915
• Docket Number: No. 30133.,30133.
• Parties: CAMPBELL v. DUNKELBERGER ET AL.
• Court: Iowa Supreme Court

172 Iowa 385

153 N.W. 56

CAMPBELL

v.DUNKELBERGER ET AL.

No. 30133.

Supreme Court of Iowa.

June 18, 1915.

Appeal from District Court, Boone County; R. M. Wright and C. E. Albrook, Judges.

Suit to enjoin a surviving widow from disposing of certain property alleged to have been jointly devised by her and husband during his lifetime. Decree was entered as prayed, and she and the son whom she would benefit appeal. Affirmed.W. T. Thompson, of Lincoln, Neb., and F. Hollingsworth, of Boone, for appellants.

Healy & Thomas, of Ft. Dodge, for appellee.

LADD, J.

Elias and Maria Dunkelberger, husband and wife, in June, 1908, executed in due form the following will:

“Know all men by these presents that we, Elias Dunkelberger and Maria Dunkelberger, of Boone county, state of Iowa, being of sound mind and memory, do make, publish and declare this to be our last will and testament, hereby revoking all former wills at any time heretofore made by us.

We give, devise, and bequeath all our property, both real and personal of every kind which we may own at our death, as follows, that is to say:

Item I. That subject to payment of all just debts and funeral expenses it is the will of Elias Dunkelberger, that in the event he die before Maria Dunkelberger, his wife, that she shall take what is known as a life estate in all his property both real and personal to have and to hold the same during her natural life and to use all the rents, profits and income of the same, with the single exception of the hotel property in Ogden, Iowa, known as the Ogden House, which said Elias Dunkelberger desires shall be her property in fee simple to make such disposal of as she sees fit.

Item II. In the event Elias Dunkelberger shall survive Maria Dunkelberger, his wife, it is her will that subject to the payment of all her just debts and funeral expenses, that Elias Dunkelberger shall take what is known as a life estate in all her property, both real and personal, to have and to hold the same during his natural life and to use all the rents, profits and income of the same as long as he lives.

Item III. It is the will of Elias Dunkelberger that in the event Maria Dunkelberger survive him that the remainder of all the real estate owned by him in Grant township, Boone county, Iowa, shall go to and be the absolute property of Daniel B. Dunkelberger and Joe Dunkelberger, his two sons, jointly, in fee simple, provided, however, that they pay to my estate the sum of $65.00 per acre, for said land, but if they elect not to do this, then said land shall go equally to the heirs of Elias Dunkelberger's estate.

Item IV. It is the will of Maria Dunkelberger that in the event Elias Dunkelberger survive her that the remainder of her real estate, located in Grant township, Boone county, Iowa, shall go to her two sons, Daniel B. Dunkelberger and Joe Dunkelberger, jointly, to be their property absolutely in fee simple, provided, however, that they pay to my estate the sum of $65.00 per acre, but if they do not elect to do this then said land shall go to the heirs of Maria Dunkelberger's estate equally.

Item V. It is the will of both Maria Dunkelberger and Elias Dunkelberger that at the death of both, all the real estate and personal property and the rest and residue of our estates, not hereinbefore disposed of, shall go to our heirs in equal shares and by that we mean that all our children living and dead shall have an equal share in our estate, if the deceased children have surviving issue.”

Elias Dunkelberger died some years ago, and Maria Dunkelberger caused the above will to be admitted to probate, was appointed administratrix with the will annexed, and on due notice to the heirs the estate was settled and she discharged as administratrix in 1910. She accepted under the will, including the Ogden Hotel property, which she disposed of, and has appropriated the proceeds thereof to her own use. At the time of his death deceased was owner of a farm of something over 240 acres in Boone county, and his widow held title to 120 acres therein, these being the tracts mentioned in items 3 and 4 of the will, and it is alleged in the petition that said widow is about to dispose of said 120 acres by deed, or has so done, or will the same to Joseph Dunkelberger, and, further, that clause or item IV of the will is invalid, and under the said will said land passes under the fifth clause to the heirs generally, of which plaintiff is one. After demurrer to the petition had been overruled an answer was filed and a demurrer thereto sustained, and a decree entered as prayed enjoining the widow from disposing of the land in her name.

No question is made but that the remedy was available to plaintiff. See Newman v. French, 138 Iowa, 482, 116 N. W. 468, 18 L. R. A. (N. S.) 219, and note, 128 Am. St. Rep. 212. That two persons may unite in a single will appears from Baker v. Syfritt, 147 Iowa, 49, 125 N. W. 998. The joint will contained in a single instrument is the will of each of the makers, and at the death of one may be probated as his will and be again admitted to probate at the death of the other, as the will of the latter. A joint will is one where the same instrument is made the will of two or more persons and is jointly signed by them. Such will is not necessarily mutual or reciprocal. Mutual wills may be defined as the separate wills of two persons which are reciprocal in provisions. So that a will may be both joint and mutual; that is, one executed by two or more persons and containing provisions which are reciprocal. It is apparent that a joint will which is not reciprocal is merely the individual will of each of the persons signing the same, and is subject to the same rules which apply if the wills are several. Mutual wills--that is, where two persons execute wills reciprocal in their provisions, either in separate instruments or in the same instrument--may or may not be revoked at the pleasure of either party, according to the circumstances and understanding upon which they have been executed. In order that either party be denied the right to revoke such wills, it must appear by clear and satisfactory evidence or on the face of the wills that these were executed in pursuance of a contract or compact between the parties, each in consideration of the other; but...