Eitzen's Estate v. Lauman
| Decision Date | 05 May 1942 |
| Docket Number | 45796. |
| Citation | 3 N.W.2d 546,231 Iowa 1169 |
| Parties | EITZEN'S ESTATE v. LAUMAN et al. |
| Court | Iowa Supreme Court |
Ferguson & Ferguson, of Shenandoah, for appellants.
H T. Pressly, of Clarinda, and L. H. Mattox, of Shenandoah, for Rosa Rope, appellee.
Plaintiff, a beneficiary named in the will of Jacob Eitzen, deceased brought an action to forclose her claimed lien created by the will of her deceased father upon certain real estate belonging to him. The defendants, who have appealed, assert that there has been a novation of the bequest to appellee by subsequent written contracts between her and her brothers Herbert Eitzen and Emil Eitzen, to whom the land was devised by the father's will.
The defendants further assert that there has been a payment of appellee's legacy and that its payment is now barred by the statute of limitations. The trial court entered a decree giving appellee judgment in rem for the full amount claimed in her petition, with interest, foreclosed appellee's lien on the real estate involved, and ordered the sale of the real estate for the satisfaction of the judgment. It also entered judgment against Emil Eitzen for the sum of $7,500 with interest and further decreed that the claim of $7,500 filed by the plaintiff against the estate of Herbert Eitzen, deceased, be allowed with interest, and established as a claim of the third class. The probate proceedings had been transferred to and consolidated with the equity proceedings for trial by order of court. The defendants, with the exception of Emil Eitzen and Alvah Eitzen, have appealed.
Jacob Eitzen, a resident of Page County, Iowa, died testate in 1921 and his will was thereafter admitted to probate. He owned 647 acres of land in Page County, Iowa, which he bequeathed to eight of his children, subject to a life estate to his wife, Anna Eitzen. The particular portion of the will which has occasioned this litigation is as follows: "Subject to the life estate hereinbefore mentioned, I will, devise and bequeath to my sons, Herbert Eitzen and Emil Eitzen, subject to the easement below set out, the Northwest quarter (NW1/4) of Section Four (4), Township Sixty-seven (67), Range Thirty-nine (39) West of the 5th P. M., upon condition and provided that they pay to my daughter Rosa Rope, the sum of $15,000.00 and pay to my daughter, Emma Christianson, the sum of $500.00 and pay to my daughter, Amanda Eitzen, the sum of $500.00 within eighteen months following the proof of this will; they to be the owners in common and share alike in the ownership of said quarter section of land and each pay one-half of the $16,000.00 above mentioned * * *."
The appellee had filed a claim against the administrator of the estate of Herbert Eitzen, one of the devisees, noted in the portion of the will of Jacob Eitzen, deceased, previously set forth, in which she claimed $7,500 due her by virtue of her father's will. Appellee asked that her claim be established as a lien against the particular land in question. To this claim she thereafter filed an amendment alleging an agreement entered into March 4, 1922 extending the time of payment of the terms of the particular portion of the will in question. As previously stated she also brought an action in equity in which she sought to enforce the provisions of the will and wherein she demanded a judgment against the administrator of the estate of Herbert Eitzen, deceased, for $7,500 and against Emil Eitzen for $7,500 and a foreclosure of the lien claimed under and by virtue of the will of Jacob Eitzen, deceased.
The record discloses that Herbert Eitzen, one of the devisees previously referred to, died October 7, 1938 and that Anna Eitzen, the wife of Jacob Eitzen, died on December 13, 1938. It is also disclosed that Emil Eitzen, one of the devisees also mentioned in the particular portion of the will in question, and his wife, Alvah Eitzen, made no defense to the action brought by the plaintiff and a judgment was entered against these two defendants. It will also be observed that they have not appealed.
The particular contentions of the appellants as noted by their brief and argument are substantially as follows: (1) The appellee has failed to sustain the allegation of her petition; (2) that there was a complete novation of the obligation of Herbert Eitzen and Emil Eitzen by virtue of an oral agreement entered into on March 4, 1922; (3) that plaintiff is estopped from claiming that the provisions of the will in question are in force and that any lien that exists is by virtue of the terms of said will; (4) that the decree is inequitable and contrary to the law of Iowa for the reason that it permits the sale of the interest in the land owned by the widow and children of Herbert Eitzen to pay the debts of the other defendant, Emil Eitzen.
The principal contention of the defendants, who have appealed, appears to be that by reason of certain papers prepared in connection with the closing of the estate of Jacob Eitzen, deceased, there has been a novation of the conditions and terms of the will of Jacob Eitzen. The necessity of limiting the length of this opinion will prevent the setting forth of all the evidence presented upon this question but a summary of the evidence and exhibits is hereinafter set forth.
On or about March 4, 1922, the widow of Jacob Eitzen and most of his children had a meeting at the office of the attorney who was assisting in the administration of the estate. At that meeting the attorney referred to the portion of the will which provided for the $15,000 payment to Rosa Rope and according to the attorney's testimony some statements were made to the effect that it was impossible for the brothers, Herbert and Emil Eitzen, to pay the $16,000 as provided by the will. According to the testimony of the attorney, he made some suggestion "* * * that we draw up an agreement to take the place of, or substitute it for the provisions of the will providing they would give the administrators not only a general receipt and waiver of notice, but also give these boys receipts, * * *." The attorney further testified "Well now, Rosa says, 'Well, that would look as tho I have got my money."' "No," I says "You can just follow your idea, that you have been paid and you have loaned it back to the boys and they can give you a note for it and that will meet the same end or purpose." And I think it was Herbert says, "Well I wouldn't want to give a note bearing interest unless the rest of them would all agree to help me pay it." At the time of this family conference there was a statement prepared and signed by Herbert Eitzen and Emil Eitzen, which was as follows:
A further exhibit which was introduced in evidence was the receipt and waiver of notice of the final report of Jacob Eitzen which was signed by Rosa Rope and the other heirs of the Jacob Eitzen ...
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