Farwell v. Carpenter

• Decision Date: 02 July 1913
• Parties: FARWELL v. CARPENTER.
• Court: Iowa Supreme Court

161 Iowa 257

142 N.W. 227

FARWELL

v.CARPENTER.

Supreme Court of Iowa.

July 2, 1913.

Appeal from District Court, Jones County; F. O. Ellison, Judge.

Suit in equity for an accounting against the defendant, as trustee, under power of attorney. It was averred in the petition that the power of attorney had been revoked. The prayer was that the defendant be required to account and to deliver to the plaintiff all property received by him in pursuance of such power of attorney. The defendant by his answer admitted that he held the property referred to as trustee and rendered a full accounting thereof. He denied the right of the plaintiff to the possession of the property and denied his right to revoke the power of attorney. Other features of the issue will be stated in the body of the opinion. There was a decree dismissing the petition, and the plaintiff appeals. Affirmed.

Ladd, J., dissenting.E. E. Reed, of Monticello, Remley & Remley, of Anamosa, and C. J. Kissinger, for appellant.

Herrick, Cash & Rhinehart, of Anamosa, for appellee.

EVANS, J.

There is no substantial dispute of fact between the parties. The accounting rendered by the defendant in his pleading was accepted by the plaintiff as correct. The controversy between the parties arises over the construction which should be put upon certain written instruments entered into on September 24, 1909, one of which was the power of attorney referred to. These instruments were all pleaded by the plaintiff in his petition as constituting a contract. The question involved is whether the plaintiff is the absolute owner of the certain property held by the defendant as trustee or whether he is entitled only to the use and income thereof during his life.

[1] The question arises out of the following facts: The property involved is a one-fifth share of the estate of Sewall S. Farwell, the father of the plaintiff who died testate September 21, 1909, leaving as his only heirs five adult children, of whom the plaintiff was one. This will was executed in April, 1899. Two codicils were attached thereto in 1903 and 1908, respectively. Under the provisions of such will, one-fifth of the estate was set apart to the use of the plaintiff during life, and the defendant was appointed as trustee. In lieu of filing such will with the clerk after the death of the testator and offering the same for probate, the existing beneficiaries entered into certain written agreements dispensing with such probate. These are the instruments which are before us for construction. The provisions of the will in favor of the plaintiff were as follows: “The remaining one-fifth (1/5) of my estate I direct shall be placed in the hands of a trustee and so invested as to produce an income, and that so much of this income as shall be needed shall be used for the comfort and support of my son, Sewall N. Farwell, to be paid to him in weekly or monthly installments, as I have sorrowfully come to the conclusion that he will never have the capacity to take care of property and earn his own living. Should he marry and have lineal issue I direct that upon his death this one-fifth of my estate with its accretions, if any, shall become the property of the said lineal issue of Sewall N. Farwell subject to all the safeguards which the law affords. In case of the death of Sewall N. Farwell without having lineal issue, I direct that the one-fifth of my estate set apart for his use shall be divided as provided in the provisions of this will for the four-fifths of my estate, and is bequeathed to my other children and their lineal descendants. I hereby appoint Henry M. Carpenter executor of this will and trustee of that portion of the estate allotted to the use of Sewall N. Farwell and request that no bonds be required of him for the faithful performance of his duties.”

In May, 1908, the testator wrote the following memorandum and placed the same with his private papers, where it was found after his death: “May 1st, 1908. I have made the accompanying deed with the view that if my death should occur while my property is in its present condition there being no other real estate, that if all parties are agreed and will consent to the same there will be no necessity of having my will probated. I think Sewall would consent to have Henry act for him as trustee with power of attorney, and I see no other complications in the way.”

In January, 1909, he wrote the following letter to the plaintiff, who then resided in another state: “Monticello, Iowa, Jan. 7, 1909. My Dear Sewall: You know I am far from well and my physical infirmities admonish me that I have a frail hold upon life. When I pass away there will be some property for the children and I have made Henry executor of my will and I hope you will leave it entirely in his hands, as he will be able to do better with it than you can possibly do for yourself. Affectionately, S. S. Farwell.”

On September 24, 1909, the existing beneficiaries (being two sons and three daughters) executed a written agreement, the material part of which was as follows: “Exhibit B: Monticello, Iowa, September 24, 1909. Whereas,Sewall S. Farwell, who departed this life on September 21, 1909, left a last will bearing date of April 5th, 1899, by the terms of which his estate was to be equally divided among all his five children (that is, one-fifth each to Mary F. Carpenter, Luna F. Templeton, Marcus Z. Farwell, Zelma F. Smith and Sewall N. Farwell, the share of said Sewall N. Farwell to be held by H. M. Carpenter as trustee); and whereas, said Sewall S. Farwell under date of May 1, 1908, made a written statement and request that, ‘If all parties are agreed and will consent to the same, there will be no necessity of having my will probated,’ and we are confident that no debts, other than expenses connected with last sickness and funeral, are in existence against said Sewall S. Farwell; and whereas, all of said five heirs fully approve of and agree to said request not to have said will probated, believing that it will expedite the settlement of the estate of said Sewall S. Farwell and in every way be to the best interests of all concerned; Now, therefore, it is hereby agreed by and between all of said five heirs, together with the husbands of the three daughters who are married, and the wife of the said Marcus Z. Farwell (said Sewall N. Farwell being unmarried), that said will be not probated, but that as promptly as possible and within a reasonable time Henry M. Carpenter, named in said will as executor, do make distribution of said estate as said will provides; that is, one-fifth to each one of said five children. Said Carpenter is to at once make distribution of the two hundred seven shares of Monticello State Bank stock held by said Sewall S. Farwell by taking up the stock certificate now held by his estate and issuing to each of said five heirs their proportionate share thereof (that is, to each of said five heirs forty-one shares), which would leave two shares still remaining in said estate. These two shares are to be disposed of as soon as practical by said Carpenter at not less than three hundred dollars per share, and the proceeds thereof credited in said Farwell estate for distribution among the five heirs with other accumulations that may come to said estate by maturing certificates or payments on outstanding securities. Mary F. Carpenter. Luna F. Templeton. Marcus Z. Farwell. Zelma F. Smith. Sewall N. Farwell. H. M. Carpenter. Edw. Templeton. Elizabeth C. Farwell. Wm. Skelton A. Smith.”

The foregoing beneficiaries, other than the plaintiff, were married, and the above names include the husbands of the daughters and the wife of the married son. On the same day the plaintiff executed the following: “Monticello, Iowa, September 24th, 1909. Whereas, the will of my father, Sewall S. Farwell, late deceased, had the following provision, especially referring to my share in his estate, (that is, ‘The remaining one-fifth of my estate I direct shall be placed in the hands of a trustee and so invested as to produce an income, and that so much of this income as shall be needed shall be used for the comfort and support of my son, Sewall N. Farwell, to be paid to him in weekly or monthly installments, as I have sorrowfully come to the conclusion that he will never have the capacity to take care of property and earn his own living’), and whereas, said will further provided that Henry M. Carpenter be appointed as the executor and also as trustee of that portion of the estate...