Clayman v. Bibler

• Decision Date: 23 June 1930
• Docket Number: No. 40208.,40208.
• Citation: 231 N.W. 334,210 Iowa 497
• Parties: CLAYMAN ET AL. v. BIBLER ET AL. (HIPSHER ET AL., INTERVENERS).
• Court: Iowa Supreme Court

210 Iowa 497

231 N.W. 334

CLAYMAN ET AL.

v.BIBLER ET AL. (HIPSHER ET AL., INTERVENERS).

No. 40208.

Supreme Court of Iowa.

June 23, 1930.

Appeal from District Court, Kossuth County; D. F. Coyle, Judge.

Action in equity for the partition of real estate. The issues and material facts are fully stated in the opinion.

Modified and affirmed.

ALBERT, J., dissenting.Hughes, Taylor, O'Brien & Faville, of Des Moines, for appellants.

W. B. Quarton, of Algona, for Mr. and Mrs. Harry M. Bibler, Adam Cook, W. B. Quarton and George Cook, Appellees.

Frank W. Senneff, of Britt, pro se.

J. L. Bonar, of Algona, for appellees interveners.

STEVENS, J.

J. C. Cook died testate in Kossuth county on the 6th day of June, 1920. By his will, he devised certain property to trustees to be managed by them for a time, the income derived therefrom to go to his daughter Mabel Lonergan so long as she should live. At her death, the property was to go to his brother George Cook and George Cook's children then living and to the two daughters of George's sister Mary. Mabel Lonergan died prior to August 23, 1924. The devisees or persons entitled to share in the estate at her death were George Cook, Adam Cook, Edward Cook, John Cook, and Mary La Fountaine, the four last named being the children of George Cook then living.

Cathryn Hipsher, one of the daughters of George Cook, predeceased her father, leaving as her sole heirs at law Lillian and Nialet Hipsher, Cathryn and George Hipsher named as interveners in this case. All are minors and are represented by their father, Herbert Hipsher, as guardian.

On August 23, 1924, the four surviving children of George Cook made and entered into the following agreement in writing, which is also signed by Herbert Hipsher:

“Know All Men By These Presents:

That we, Ed. Cook, Adam Cook, John Cook and Mary La Fountaine, being all the living children of George Cook (brother of Hon. John C. Cook, late of Algona, Iowa), do hereby agree between and among ourselves that:

Whereas, our sister, Cathryn Hipsher, did depart this life before the death of our cousin, Mabel C. Lonergan, late of Algona, Iowa, and under the peculiar wording of the will of our uncle, Hon. John C. Cook, because she predeceased our cousin Mabel, would not share and her children would not share in the estate of our said uncle; and believing that it was the wish and desire that the children of our sister, Cathryn, should share in his estate as expressed to us by our said uncle, the Hon. John C. Cook,

Now, Therefore, we the undersigned do hereby agree that we will divide whatever property we may receive from the trustees, or estate of our said uncle, Hon. John C. Cook, into five equal parts, instead of four equal parts, and that the one-fifth equal part shall go to the children of our said sister, Cathryn Hipsher.

The consideration for this agreement is to save complication growing out of the settlement of said estate, and the honest belief that it was the real wish of our said deceased uncle, and that Herbert Hipsher, husband of our late sister, Cathryn, will lend his services and good offices towards the prompt settlement and just settlement of the estate of our said uncle.”

Herbert Hipsher, as guardian, appeared in this action, which is an action in partition, and filed a petition in intervention setting up and alleging that his wards, the children of Cathryn Hipsher, are, by reason of the foregoing contract, possessed of an interest in the property described in the petition, and prayed that such interest be confirmed and established by the court. A motion to strike the petition in intervention was overruled by the court. In due time, Adam Cook, one of the parties to the contract above referred to, intervened, alleging the same matters as were alleged in the petition of Herbert Hipsher and asking specific performance of the contract as against his comakers, and also that the designated interest of the Hipsher children be established in the land in accordance with the terms of the contract. The remaining parties to the contract answered the petition in intervention of Adam Cook and alleged that the contract therein referred to was void for want of consideration. A reply filed in behalf of all interveners joined issue on the affirmative allegations of the answer. The court found in favor of the interveners and a decree was entered accordingly. The major controversy, therefore, on this appeal involves only the asserted claims of the interveners.

First, it is contended by appellants that the contract specifically and in terms recites a consideration agreed upon by the parties; that such consideration is conclusive and that no other may be shown; that the assumed consideration is neither a valid nor legal one; and that the instrument amounts to nothing more than a written promise on the part of the children of George Cook to make a gift to the children of Arthur Hipsher, and is therefore wholly invalid and unenforceable.

All parties concede that interveners have no interest in the property involved unless an interest is given them by the writing in question. The consideration, which appellant contends is specifically recited in the contract, is contained in the last paragraph thereof. The trial court held that the recitals of this paragraph are more in the nature of the expression of the motives which prompted the execution of the contract than a formal statement of an agreed consideration.

[1][2][3] “Motive” and “consideration” are not identical. The expectation of a definite result is often the motive which prompts the execution of a contract. Such expectation is not, however, binding. Ordinarily, “consideration” is the price paid for the undertaking of the promisor, but it may be for the benefit of a third party. Under the provisions of section 9440, Code 1927, “All contracts in writing, signed by the party to be bound or by his authorized agent or attorney, shall import a consideration.” Unless, therefore, the consideration is clearly and definitely expressed in the contract, as contended by appellant, the writing itself imports a consideration and, in addition thereto, there are the mutual promises of the parties to forbear, forego, or relinquish a certain share or portion of their interest in the estate for the benefit of interveners. The rule that where the consideration expressed in the contract is in itself a promise, and therefore contractual, it cannot generally be varied by parol, is of practical universal application. Gelpcke Winslow & Co. v. Blake, 19 Iowa, 263;Rynear v. Neilin, 3 G. Greene, 310;Lewis v. Day, 53 Iowa, 575, 5 N. W. 753; McGee v. Allison, 94 Iowa, 527, 63 N. W. 322;McEnery v. McEnery, 110 Iowa, 719, 80 N. W. 1071;Schrimper v. Railway Co., 115 Iowa, 35, 82 N. W. 916, 87 N. W. 731;Lane v. Richards, 119 Iowa, 24, 91 N. W. 786;Slump v. Blain, 177 Iowa, 239, 158 N. W. 491;Banwart v. Shullenburg, 190 Iowa, 418, 180 N. W. 190;Chantland v. Sherman, 148 Iowa, 352, 125 N. W. 871;Kay v. Spencer, 29 Wyo. 382, 213 P. 571, 27 A. L. R. 1122;McCourt v. Peppard, 126 Wis. 326, 105 N. W. 809;Blough...