Dean v. Atkinson
| Decision Date | 06 April 1926 |
| Docket Number | 37246 |
| Citation | 208 N.W. 301,201 Iowa 818 |
| Parties | RAE L. DEAN, Treasurer, Appellant, v. ELIZABETH ATKINSON, Executrix, Appellee |
| Court | Iowa Supreme Court |
Appeal from Audubon District Court.--W. C. RATCLIFF, Judge.
ACTION to establish a claim against an estate. Plaintiff's demurrer to the answer of defendant was overruled, and plaintiff appeals.
Affirmed.
L. Dee Mallonee and A. V. Proudfoot, for appellant.
Hughes Taylor & O'Brien and J. A. Graham, for appellee.
DE GRAFF, C. J., not participating.
Samuel Atkinson, a resident of Audubon County, Iowa, died testate on February 2, 1924. On opening his estate, the claimant herein treasurer of Simpson College, filed a claim consisting of a writing purporting to have been executed by the deceased on the 18th day of June, 1923, the material part of which is as follows:
"In consideration of my interest in Christian education I hereby pledge and will pay to the treasurer of Simpson College, Indianola, Iowa, the sum of three fourths of my estate dollars ($ 3/4 of my estate) upon the following terms and conditions: (1) This pledge shall be due and payable at the time of my decease and shall be paid out of the proceeds of my estate."
This writing is witnessed by A. H. Roberts and D. E. McClain.
To this claim the executrix of the estate filed an answer in three divisions. In the first division it is recited that:
"As to whether said Samuel Atkinson made and signed the paper upon which said claim of Rae L. Dean, treasurer of Simpson College, is based, this defendant has neither knowledge nor information sufficient to form a belief."
In this same division the executor says that said paper and instrument is testamentary in form, and was so intended by the deceased; that the will probated in this estate fully and wholly revokes said paper and instrument upon which appellant's claim is based; and that for that reason the instrument claimed on is void and of no effect. In the second division it is alleged, in substance, that said instrument was executed to a corporation engaged in educational and other kindred work at Indianola, Iowa, and that the deceased, having heirs, was without authority to devise or will a greater amount than 25 per cent of his estate to said institution, the said instrument being, in effect, a testamentary instrument. In the third division it is pleaded that the instrument sued on was indefinite and incomplete in substance and form, and is and was without consideration, was merely a testamentary paper, and was revoked by the will subsequently made.
Later, an amendment was filed to this answer by adding to it a fourth division, in which it is pleaded that the signature of Samuel Atkinson to said written instrument was secured by false and fraudulent representations, which are enumerated therein. At this point in the proceedings, a motion to strike certain parts of the original answer was filed by appellant, and on the same day separate demurrers were filed to the original answer and to the amendment to the answer. Following this, a second amendment to the answer was filed, amending Divisions 3 and 4 by elaborating more fully and setting out more in detail the alleged false and fraudulent representations. Apparently by agreement of the parties, the motion and demurrers were treated as standing to the petition with both amendments thereto, and we shall so treat them. On submission to the court, the motion and demurrers were overruled. The appellant stood on the rulings, refused to plead further, and judgment was entered accordingly.
These matters being taken in their inverse order, the demurrer to the first amendment to the answer raises the question that appellee's pleadings thus far filed do not allege (1) that the representations made were false; (2) that they were known to be false by the maker thereof; (3) that they were made with intent to defraud and deceive. After the filing of this demurrer, and before the ruling thereon, all these matters were set out in detail in the second amendment to the answer.
A further part of this demurrer urges: (1) That it did not plead that the deceased was damaged by any alleged representation; (2) that facts are not pleaded which sustain the allegation of fraud; (3) that what is pleaded is merely a matter of opinion and conclusion of law. None of these grounds are available as a basis for demurrer.
We will next consider the first demurrer, the grounds of which are that: (1) The defendant has not denied under oath the genuineness of the signature to the written instrument. (2) Defendant has not pleaded such facts as would constitute a defense to plaintiff's claim, but pleads matters of opinion and conclusions of law, which matters of opinion and conclusions of law are not admitted by the filing of the demurrer. (3) Plaintiff specifically demurs to Divisions 1, 2, and 3 of the answer, and to each of them, as pleading no facts constituting a defense, or that would justify the relief asked, and alleges that in each and all of said divisions the pleader has stated conclusions of law and matters of opinion, and not facts constituting a defense. (4) Defendant's answer on its face does not state facts constituting a defense, nor such facts as entitle defendant to the relief asked.
With reference to the last three grounds of the demurrer to the amendment, and all of the first demurrer above referred to, appellee says that the same are general demurrers, and do not comply with the requirements of the statute governing demurrers. Section 11141, Code of 1924, provides the grounds for demurrer under Iowa practice. Of these grounds we are interested in but one, the fifth, which reads:
"That the facts stated in the pleading attacked do not entitle the adverse party to the relief demanded."
A reference to the grounds for demurrer shows that the substance of each one of the grounds in the demurrers filed is, in effect, almost identical with the wording of the statute. If this were all the proposition involved, there would be little in appell...
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