Dawley v. Dawley's Estate

• Decision Date: 07 July 1915
• Docket Number: 8091.
• Citation: 60 Colo. 73,152 P. 1171
• Parties: DAWLEY v. DAWLEY'S ESTATE et al.
• Court: Colorado Supreme Court

152 P. 1171

60 Colo. 73

DAWLEY v. DAWLEY'S ESTATE et al.

No. 8091.

Supreme Court of Colorado

July 7, 1915

Error to District Court, Weld County; Neil F. Graham, Judge.

Claim by Ella J. Dawley against the estate of Hannah J. Dawley deceased, and James Tuckerman, as executor. To review a judgment disallowing the claim, claimant brings error. Reversed, with instruction.

Hannah J. Dawley died on the 25th day of December, 1909. Her will was later admitted to probate, and in due time the plaintiff in error, Ella J. Dawley, filed her claim against the estate based upon the following written instrument:

'Greeley Colo. Sept. 15, 1906. This is a statement and promise whereby Hannah J. Dawley promises to pay and cause to be paid to her son Edward F. Dawley and his wife Ella J Dawley the sum of seven hundred dollars a year, with interest at six per cent--the above sum of seven hundred a year with interest beginning with the year 1881 month of July 1st and ending 1906, August 30th, at which time a Life Estate deed was made out to Edward F. Dawley and his wife Ella J. Dawley from Hannah J. Dawley. That is not satisfactory to Edward F. Dawley thereby causing this settlement between Hannah J. Dawley and Edward F. Dawley for reasons hereafter named. The above amount at seven hundred dollars a year for each and every year running from 1881 month July 1st, to 1906, August 30th Hannah J. Dawley for the above amount of seven hundred dollars a year at 6 per cent hereby gives security on all the real estate of every kind and nature belonging to her estate, together with all notes and money of whatever nature or kind belonging to her said estate to Edward F. Dawley and Ella J. Dawley for the above amount of seven hundred dollars a year at six per cent until paid, the above amount of seven hundred dollars a year at six per cent to be paid in full any time the said Hannah J. Dawley's death takes place to her son, Edward F. Dawley and his wife Ella J. Dawley if living or to either one that outlives the other whatever the case may be to either son or son's wife Ella J. Dawley, but if both Edward F. Dawley and his wife are living at time of Hannah J. Dawley's death then the above sum to be equally divided between Edward F. Dawley and Ella J. Dawley. Now in consideration of this seven hundred dollars a year at six per cent beginning the year 1881 month July first and ending 1906 August 30th, to be paid Edward F. Dawley and his wife Ella J. Dawley if living at the time of Hannah J. Dawley's death to be equally divided between Edward F. Dawley and Ella J. Dawley if both are living at the time of Hannah J. Dawley's death or in case either Edward F. Dawley or Ella J. Dawley are dead at the time of Hannah J. Dawley's death then the full amount at seven hundred dollars a year at six per cent to go to Edward F. Dawley or Ella J. Dawley whichever one outlives the other--Edward F. Dawley goes on to give his reasons for this settlement as he has already given to his mother before starting in to make these writings first as he hereby states at one time back in the state of Vermont on account of the law of Vermont only giving the widow one third at time of her husband's death Hannah J. Dawley persuaded her husband D. L. Dawley to make a will willing her everything and all the property except one thousand dollars to Edward F. Dawley which in the first place he D. L. Dawley refused to do for the reason he said that Ed might turn out yet to be of considerable help to him before he would be of age by his help and time he might put in to work, in case he does I cant cut him down to that small amount of one thousand dollars in my will but if she Hannah J. Dawley was willing to sign writings to this effect that after his, D. L. Dawley's death any time she would be taken away and her death would take place it should be understood in the writings that all the property and everything then would go to Edward F. Dawley if alive or any time she would get married again then at the time of her marriage she would have to turn over to Edward F. Dawley the same amount of property and money that would go to Edward F. Dawley by law or that he would get if no will were made or never made by him D. L. Dawley and the writings to be put in safe keeping until they were needed for that purpose, then if you are willing to do this I will make a will willing you everything but the one thousand to Edward F. Dawley. This Hannah J. Dawley consented to do and did do. Then afterwards she, Hannah J. Dawley, not being satisfied with his Edward F. Dawleys having only the one thousand dollars in his fathers will D. L. Dawleys, wanted her husband D. L. Dawley to change the one thousand to only five hundred dollars in his will going to Edward F. Dawley whenever his death D. L. Dawleys would take place, this he D. L. Dawley declared he would not do, but after a long argument with his wife, Hannah J. Dawley, they finally came to the decision to destroy the other writings signed by her Hannah J. Dawley willing Edward F. Dawley one thousand dollars in the will the first time to writings now signed by her Hannah J. Dawley changing the one thousand in the will of D. L. Dawleys to five hundred in D. L. Dawleys will with the understanding that by changing the one thousand dollars in will to five hundred dollars in D. L. Dawleys will the writings shall now read that after D. L. Dawleys death with only five hundred dollars going to Edward F. Dawley in his will that it shall be understood by this small amount of only five hundred dollars to be Paid to him Edward F. Dawley after his D. L. Dawleys death that besides this five hundred dollars Edward F. Dawley will begin drawing interest at six per cent on whatever amount he Edward F. Dawley would be entitled to and would be coming to him as D. L. Dawleys son with no will made or that never had been made by his Edward F. Dawleys father D. L. Dawley and according to whatever D. L. Dawley is worth or would be worth at the time of his death and belonging to his estate with the interest beginning after D. L. Dawleys death and running to the time of Hannah J. Dawleys and Edward F. Dawleys death providing they make or have settlement no other way before their deaths as it is hereby understood in these writings that when ever Edward F. Dawley would be sick or in need in any way or disabled in any way and in want for anything he or his family if any there be will be entitled to this interest money any time by calling for it or him Edward F. Dawley through guardian if at the time of calling for it he or his family or guardian has not overdrawn it in any way and in case it is refused to him or his guardian or his family by the said Hannah J. Dawley then at any time he or his wife or guardian can take whatever legal way they see fit to procure what they are entitled to of this interest money or at and time Hannah J. Dawley would get married again then at the time of her mariage she would have to turn over to Edward F. Dawley or to his family if any he Edward F. Dawley leaves by death the same amount of the property and money that would go to Edward F. Dawley by law or that he would get if no will were made or never had been made by him D. L. Dawley, and furthermore, that whenever she Hannah J. Dawley would be taken away and her death take place then at the time of her death all the property and everything then it is understood shall go to Edward F. Dawley if alive and in case of Edward F. Dawley being dead at the time of Hannah J. Dawleys death then the property of real estate and including everything except housefurnishing jewelry and clothing in case that he Edward F. Dawley is dead but leaves a wife and children then it will go to his wife and children if any there be or to his wife or to his children either way if wife and no children then all to wife or if children and no wife then all to children.

'Then after all this understanding between Hannah J. Dawley and D. L. Dawley by changing D. L. Dawleys will from one thousand dollars to five hundred dollars going to the son Edward F. Dawley in his will D. L. Dawleys and writing to be put in safe keeping Hannah J. Dawley signed all of these writing to be carried out after his death D. L. Dawley's death and her death Hannah J. Dawleys at the time of her death to be carried out after her death. Now after all of these writings and promises I have always had the hardest work to get any money coming to me through this interest at six per cent but did not care so much as I thought it was safe in the places in real estate that would not be spent so that if I don't live to get it my wife will have enough after I am under the sod to pay her for what she has done for me in taking care of me and working beyond her strength in this old rooming house when she and I ought to have what legally belong to us through this interest at six per cent as my father D. L. Dawley was worth to my knowledge at the time of his death about thirty five thousand dollars that I know to be the truth but at different times my mother Hannah J. Dawley has sent to her relatives to the best of my knowledge between five and six thousand dollars helping them at different times with my consent on account of my drawing interest on half of my fathers D. L. Dawleys estate beginning at time of his D. L. Dawleys death, now after all this I Edward F. Dawley dont propose to be cheated out of all that legally belongs to me and my wife and hereby take this way of settlement as I have never collected or could collect on an average the amount one hundred dollars a year in all the years since my fathers death.

'These writings of ten pages I want carried out after my death in favor of my son Edward F. Dawley and his wife Ella J. Dawley if alive or to either one that outlives the

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