Duhme v. Duhme

• Citation: 260 N.W.2d 415
• Decision Date: 21 December 1977
• Docket Number: No. 59366,59366
• Parties: Melvin A. DUHME, Thelma A. Blatt, Arlene A. Tegmier, and Helen A. Spratt, Appellees, v. Kenneth A. DUHME, as Executor of the Estate of Fred Duhme, Deceased, Elmer A. Duhme, Kenneth A. Duhme, Albert A. Duhme, Chester A. Duhme, Harold A. Duhme, and Raymond A. Duhme, Appellants.
• Court: United States State Supreme Court of Iowa

Page 415

260 N.W.2d 415

Melvin A. DUHME, Thelma A. Blatt, Arlene A. Tegmier, and Helen A. Spratt, Appellees, v. Kenneth A. DUHME, as Executor of the Estate of Fred Duhme, Deceased, Elmer A. Duhme, Kenneth A. Duhme, Albert A. Duhme, Chester A. Duhme, Harold A. Duhme, and Raymond A. Duhme, Appellants.

No. 59366.

Supreme Court of Iowa.

Dec. 21, 1977.

Dennis E. Roberson, Maquoketa, for appellant, Kenneth Duhme.

Goodenow & Wright, Maquoketa, for appellant, Raymond A. Duhme.

Kintzinger, Kintzinger, Van Etten, Setter & King, Dubuque, for appellants, Elmer A. Duhme and Chester A. Duhme.

Sokol & Sokol, Maquoketa, for appellant, Albert Duhme.

Remley & Heiserman, Anamosa, for appellees.

Submitted to MOORE, C. J., and MASON, LeGRAND, REYNOLDSON and HARRIS, JJ.

MASON, Justice.

This is an appeal by defendants, Raymond A. and Albert A. Duhme, from the trial court's decree granting relief in the nature of specific performance of the contractual provisions of the mutual wills of Fred and Mary Duhme, their father and mother. Mary Duhme died July 4, 1965; Fred died February 22, 1975.

There is no dispute Fred and his wife Mary Duhme executed mutual wills March 25, 1960. However, Fred Duhme made a first codicil to his last will and testament November 24, 1964, a second codicil October 25, 1965, and a third on June 26, 1972. Following their respective deaths their wills and the three codicils to Fred's will were admitted to probate in the Jackson District Court.

Plaintiffs who are a son and the daughters of decedents, Fred and Mary Duhme, had commenced an equitable action against Kenneth Duhme, executor of Fred's will, and the other Duhme children. Plaintiffs as a basis for relief alleged that prior to their respective deaths Mary A. and Fred Duhme made and entered into a contract for the disposition of their estates and that the wills of Mary A. and Fred Duhme were each made pursuant to said contract; that Fred Duhme violated this contract by placing a substantial portion of his property and estate in bank deposits in certain Iowa banks which were represented by Time Certificates of Deposit in the name of Fred Duhme and some of his children as joint tenants or in such way the surviving children would ostensibly become owners of said accounts. These transfers were made before and after Mary's death.

Plaintiffs further alleged that the purported three codicils to the last will and testament of Fred Duhme attempted to change or alter the rights of plaintiffs in and to said estate. Plaintiffs sought a decree directing the executor to make distribution of the assets of Fred Duhme's estate in accordance with his last will and testament without regard to the codicils; that the funds represented by the bank deposits and Time Certificates of Deposit be declared to be the property of the estate of Fred Duhme.

The trial court found the wills were not revocable except by consent of both testators and no such consent was shown. Based on this finding the court declared invalid all the codicils Fred had executed and found the transfers of the assets also invalid.

By agreement of counsel but subject to the right of opposing counsel to make objections to the contents plaintiffs read into evidence a statement of A. L. Keck who had been the decedents' attorney during the time material to this lawsuit. At the time of trial Mr. Keck was a district judge of the Seventh Judicial District of Iowa. We set out the statement in its entirety:

"Pursuant to our recent conference I am furnishing each of you the following narrative: I was well and personally acquainted with Fred and Mary Duhme during their lifetimes. They were clients during the latter part of my private law practice which terminated in July 1971. I consulted with them concerning the ordinary problems of farming, tax and real estate matters. I assisted Fred Duhme as Executor of the Estate of Mary Duhme who died in July 1965. Both of these parties were known to me as substantial citizens of good character and repute. Fred was of the rugged individual type. He had farmed hard and well all of his life and had prospered. He was strong willed and determined in his convictions and concepts of right and wrong. Mary was a genteel lady in every sense. She was pleasant to deal with and went along with Fred in most things. However, she had a mind of her own and it was not about to acquiesce in any proposition that violated her principles or personal views. I prepared a Will for each of these parties and the same were executed March 25, 1960 after preliminary conferences at which they both were present. Fred had given considerable thought to the distribution of his estate and had discussed same with Mary and they both discussed the matter with me. They were not interested in trusts or any other plan that might involve a bank or non-family administration. They reached mutual agreement as to the disposition of their estates which is reflected in the Wills signed March 25, 1960. Mary's agreement was somewhat reluctant. It is my recollection that she felt Fred was being more generous to the sons than to the daughters. She also felt that her son Harold Butka, also known as Harold Duhme, who had been raised in the home, should be treated as one of the children or provided for to some extent. However, Mary decided to go along with Fred and the two Wills were duly executed and witnessed. Both agreed prior to and at the time of execution that these instruments were final testamentary dispositions, that the same would not be altered or changed unless they jointly agreed during their lifetimes that no lifetime gifts or transactions would thwart this intent and that the Will of the survivor would be irrevocable. Language to this effect is included in each Will. Fred's First Codicil of November 24, 1964 was executed at a time when he was well aware of the provisions of the Will as described above and the effect thereof was explained by me. These matters were also discussed with Mary and with both of them together. She declined to go along with Fred by way of agreeing to his First Codicil or in executing a confirming Codicil to her own Will. Both of these instruments had been prepared at Fred's instance and request. He decided to sign the First Codicil without Mary's agreement and consent and did so. His thought was that Mary would come around to his way of thinking and agree with him or that if not, the children would respect his wishes. At no time were there any family arguments or unpleasantness involved. Mary, in substance, felt that the First Codicil was less fair to the daughters than the original Will and she declined to participate therein. I conferred with them both present together at least once on this matter probably more than once but I am not sure as to this. I do not remember if Mary was present when Fred signed the First Codicil. If she was not, I do not know if she ever was advised that it had been signed. Fred's Second Codicil of October 25, 1965 was executed by him after Mary's death and after further discussions with me as to the restrictions of the original Will. His reasoning was much the same at this time in that he felt the children would honor his wishes and he directed the preparation of the Second Codicil with language to this effect. At no time was there any question in my mind as to mental competency or constraint of either testator. Gentlemen: this is an effort, at your request, to furnish you my information on an equal basis. Hopefully, you can agree to submit this narrative to the trial court or stipulate as to my testimony in some other form. Otherwise, you may want my deposition, which I trust will be a last resort."

It is undisputed the mutual wills purport to be irrevocable while both Fred and Mary lived and after the death of either of them. The language of Fred's will is basically the same as that in Mary's. It reads in pertinent part as follows:

" * * *isp

"ELEVENTH : * * * These Wills have been made pursuant to a contract between us to dispose of our Estates as provided in these Wills. This contract provides that neither of us shall revoke or amend his or her Will by Codicil or otherwise, nor make any inter vivos disposition of property or contract which will defeat or avoid the agreement to dispose of our property as provided in these Wills. * * *

" * * * vi

"FOURTEENTH : By reason of the contractual agreements contained in this Will and that of my wife, both of which are executed this date, we are depositing said Wills in escrow * * * upon the condition that said Wills, or either of them shall not be withdrawn from escrow during our lifetimes except upon our joint application. * * *."

Neither party disputes the admission into probate of the three codicils executed by Fred. Plaintiffs seek specific performance of the contractual provisions of the wills or in the alternative damages for breach of the contract expressly recognized in the wills.

The issue presented is whether a party to a mutual will may unilaterally revoke his will with notice during the lifetime of both parties where the mutual wills were made in compliance with an express contract prohibiting any other disposition of his property other than that agreed to in the wills.

I. This is an action in equity; therefore our review is de novo. We examine the whole record and adjudicate rights anew on those propositions properly presented, provided the issue has been raised and error, if any, preserved in the course of trial proceedings. While we will give weight to the findings of trial court this court will not abdicate its function as triers de novo on appeal. In re Marriage of Williams, 199 N.W.2d 339, 346 (Iowa 19...