Chantland v. Sherman
| Decision Date | 09 April 1910 |
| Citation | 125 N.W. 871,148 Iowa 352 |
| Parties | ANNA SHERMAN CHANTLAND, Appellant, v. CARRIE SHERMAN, Appellee |
| Court | Iowa Supreme Court |
Appeal from Cherokee District Court.--HON. F. R. GAYNOR, Judge.
ACTION to enforce an alleged oral agreement to execute a will or to cancel certain conveyances because procured by fraud resulted, on hearing, in the dismissal of the petition. Plaintiff appeals. Reversed and remanded.
Reversed and remanded.
Herrick & Herrick and Augustus Graham, for appellant.
Molyneux & Maher, for appellee.
Plaintiff is the only child of J. A. Sherman, a physician of Cherokee who died testate October 10, 1899. The defendant was the second wife of deceased, having been married to him January 1, 1889, and was childless. She had been married previously and had an adopted daughter, Mae Williams, who died, after she had married, leaving a son. The will of deceased directed: (1) The payment of the debts and funeral expenses (2) bequeathed his personal property to his wife "for her use and benefit during her lifetime, giving to my said wife full control over said property;" (3) devised all his real estate to his wife, "together with the hereditaments and appurtenances thereto belonging or in any wise appertaining to have and to hold to my wife, Carrie Sherman, during her lifetime with full power to control the same during her lifetime as though this was an absolute bequest;" (4) recited that he had set aside a life insurance policy of $ 1,000 to his daughter, Anna Sherman, to be used in the completion of her education; and (5) directed that "all of my property, both real and personal, of whatever kind or character or nature, that remain at the time of the death of my wife, Carrie Sherman, be equally divided between my daughter, Anna Sherman, and my stepdaughter, Mae Williams, share and share alike." It nominated the widow as executrix and recommended that she be allowed to qualify without bond. Within two weeks after Sherman's death, Anna Sherman and Mae Williams executed to the widow, defendant therein, a bill of sale transferring to her all their interest in the personal property of deceased and a deed conveying to her all their interest in the real estate left by him. The petition, in the first division alleges that these conveyances were executed in pursuance of an oral agreement between the grantors and grantee therein by the terms of which, as consideration thereof, defendant undertook to will to each of them the property, which each so transferred and one-half of her own property; that, though defendant often had promised performance on her part, she utterly refused to execute a will as agreed on February 23, 1907, repudiated her promise so to do, and threatened to make other disposition of the property. In the second division of the petition, an agreement and repudiation thereof as stated above was alleged, and, in addition thereto, a secret intention not to perform the same, and that, because of the situation and relation of the parties, the conveyances were procured by fraud, and, as alternative relief, the cancellation of the bill of sale and deed was prayed. The answer admitted the execution of these instruments, denied that this was in pursuance of any agreement, or that they were procured by fraud, averred title under the will, averred that the property was set apart to her by the court upon final settlement of the estate of which plaintiff had notice, alleged that the cause of action contained in the first division of the petition had not accrued, and that as the cause pleaded in the second division was not set up until the trial began, plaintiff had elected to rely on the cause contained in the first division, and prayed to go hence with her costs.
I. The doctor died October 10, 1899, and on the 21st of that month the bill of sale, and two days later the deed, was executed. The will was admitted to probate on the date last mentioned, and on the same day defendant qualified as executrix and the inventory was filed. Plaintiff was then under twenty years of age and Mae Williams about three years older. Both were members of defendant's household and neither had had any business experience or knew the extent or nature of the estate left by deceased. Save an absence of a year at the State Normal School, plaintiff had resided with her father and defendant since their marriage, as also had Mae Williams, when not away at school. The attitude of both toward the defendant was that of a child to a mother, and undoubtedly she exercised over them the influence mothers usually do over grown daughters. Plaintiff testified that an attorney of her acquaintance for many years and in whom she reposed entire confidence came to the house on the 21st of October, 1899, and that defendant called her and Mae Williams into the room where he was and explained that the attorney had advised her the will was drawn in such a way that she would have to keep an account of all money expended during her life; that this would involve much work; that deceased had always thought a great deal of Mae and had often expressed a desire that she share alike with plaintiff in the property and proposed, if plaintiff and Mae would convey to her all their interest in the estate, this would relieve her from keeping an account, and she would, when she died, divide the property equally between them, as that was the idea of deceased and she wanted to carry it out in her will; that plaintiff had not talked with the attorney before, though he assured her in defendant's hearing that he would see that such will was made, to which defendant added that she would make the will as soon as she got to it; that, in response thereto, plaintiff and Mae expressed their willingness and, in reliance on what was said, executed the bill of sale, which the attorney then drew from his pocket and afterwards the deed. The attorney loaned defendant a dollar to be paid each of the girls upon the execution of each instrument, and she handed the same to them; the attorney explaining that this was done to render the instrument binding. The witness testified of two subsequent conversations with defendant in which the latter expressed her purpose to make the will as soon as she could get to it. Plaintiff's husband testified that he called on defendant February 23, 1907, and, after suggesting that upon her death plaintiff would inherit nothing, said to her that he thought she ought to make her will as agreed, to which she replied that she would not make the will; that he asked if she had not promised to and she responded: "When I said that, I did not mean I was going to give Anna my property, because I have too many relatives of my own to do that."
On the other hand, the defendant testified that on meeting the attorney on the street he had inquired how she was coming on to which she replied that bills were coming in faster than funds to meet them, and asked if there was any way out of this; that he remarked that there was just one way, and that was for the girls to sign to her; that she said Mae would do as she wished, but she did not know about plaintiff; that the attorney replied that he would talk with them; and that the next she knew he brought the papers to the house and they signed them; that she made no explanation or promise to them; that the attorney merely asked if they were ready to sign, and, responding that they were, they signed the bill of sale and deed; that she was surprised at it being done so quickly and had no part therein save as stated; and that the matter of willing the property was not mentioned. On cross-examination, in answer to an inquiry as to whether the witness ever told plaintiff she would make a will in her favor she responded: "No, not exactly; but I have always thought I might." Being reminded that the inquiry was for what she said, not thought, she again answered: "No, I don't think I ever did." To another question, she answered that she did not think she said anything to plaintiff's husband about making the will, and later that she did not remember anything about it. Concerning a conversation had subsequent to the beginning of the suit, she was asked: Later she denied that anything of the kind was said. She testified, further, that she had always...
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