Father Flanagan's Boys' Home v. Turpin

• Court: Iowa Supreme Court
• Writing for the Court: THOMPSON
• Citation: Father Flanagan's Boys' Home v. Turpin, 106 N.W.2d 637, 252 Iowa 603 (Iowa 1960)
• Decision Date: 13 December 1960
• Docket Number: No. 50173,50173
• Parties: FATHER FLANAGAN'S BOYS' HOME of Boys Town, Nebraska, Christian Home Orphanage of Council Bluffs, Iowa, First Presbyterian Church of Panora, Iowa, Nora Turpin Blackman, Appellees, v. Elsie TURPIN, Earl J. Reynoids, Nadine Reynolds, Gary E. Reynolds, Connie Louise Reynolds, McPherson College, Panora Church of the Brethren, Elsie M. Turpin, Executrix of the Estate of Berthel Turpin, Deceased, Appellants.

Page 637

106 N.W.2d 637

252 Iowa 603

FATHER FLANAGAN'S BOYS' HOME of Boys Town, Nebraska, Christian Home Orphanage of Council Bluffs, Iowa, First Presbyterian Church of Panora, Iowa, Nora Turpin Blackman, Appellees, v. Elsie TURPIN, Earl J. Reynoids, Nadine Reynolds, Gary E. Reynolds, Connie Louise Reynolds, McPherson College, Panora Church of the Brethren, Elsie M. Turpin, Executrix of the Estate of Berthel Turpin, Deceased, Appellants.

No. 50173.

Supreme Court of Iowa.

Dec. 13, 1960.

Rehearing Denied Feb. 8, 1961.

Emmert, Lindgren, Eller & Miller, Des Moines, for appellants.

R. K. Craft, Adel, for appellees.

THOMPSON, Justice.

On May 8, 1954, Berthel Turpin and Elsie M. Turpin, husband and wife, made their joint will, which we set out: 'We, Berthel Turpin and Elsie M. Turpin of Panora, Guthrie County, Iowa, each being of sound mind and memory do hereby make, publish and declare this to be the last will and testament of each of us made jointly for the use and benefit of the one who may survive the other, hereby revoking any and all wills by either of us heretofore made.

'Item I. We direct the payment of our just debts and funeral expenses of each of us.

'Item II. We hereby give, devise and bequeath to the survivor of us all of the property then owned or possessed by the one who dies first to be the sole and absolute property of the survivor.

'Item III. At the death of the survivor of us we hereby devise and bequeath all the remainder of the property of either of us as follows:

'1st. To the First Presbyterian Church of Panora, Iowa, the sum of $2,000.00.

'2nd. To the Panora Church of the Brethren, the sum of $2,000.00

'3rd. To Nora Turpin Blackman in the event she survives both of us, the sum of $2,000.00

'4th. All the rest, residue and remainder of our estate we devise to Father Flanagan's Boys Home of Boystown, Nebraska, and the Christian Home Orphanage of Council Bluffs, Iowa, in equal shares.

'We hereby appoint the survivor of us as executor of this will the one who may survive the other to act without bond and hereby appoint C. K. Batschelet as Executor of this will at the death of the survivor of us.

'In Witness Whereof we have each subscribed our names hereto this 8th day of May, 1954.

'/s/ Berthel Turpin.

/s/ Elsie M. Turpin.'

The will was duly witnessed, and no contention is made as to its proper execution.

Berthel Turpin died on May 20, 1955, leaving Elsie M. Turpin as his widow surviving. Thereafter Elsie M. Turpin, claiming to be the sole owner of the property left by Berthel Turpin, deeded certain real estate in Guthrie County to her brother, the defendant Earl J. Reynolds for his life, then to his wife, the defendant Nadine Reynolds, for her life, with remainder to their children, the defendants Gary E. Reynolds and Connie Louise Reynolds. It is stipulated this real estate was of the value of $80,050.75 on the date of the conveyance, which was February 2, 1957. On the same date Elsie M. Turpin conveyed to the defendant McPherson College other real estate in Guthrie County, which by stipulation was at that time of the value of $58,500. Elsie M. Turpin retained a life interest in each parcel of realty, and received no consideration for the conveyances but made them as gifts. Admittedly all the real estate came to Elsie M. Turpin through the will of Berthel Turpin.

The gross estate of Berthel Turpin is shown, by stipulation, to have been $193,989. This was diminished by debts, costs of administration and federal estate taxes in the total amount of $17,971.99, leaving a net estate of $176,017.01. Berthel Turpin had been married in 1912 to Bessie G. Turpin, who died in 1952; and he had received approximately one-half of the property which he left from her estate. Berthel Turpin and Elsie M. Turpin were married on June 14, 1953. At that time Elsie M. Turpin owned real and personal property of the stipulated value of $8,106.82.

It is the contention of the plaintiffs that the joint will of Berthel and Elsie M. Turpin, set out above, was an irrevocable contract which Elsie M. Turpin could not defeat by depleting the estate by gifts totalling more than three-fourths of the net estate. The trial court agreed, and entered its decree setting aside the conveyances to Reynolds and to McPherson College, made Elsie M. Turpin the trustee of the property of the Berthel Turpin estate in her hands, and enjoined her from disposing of it. At the same time the court dismissed defendants' cross-petition praying that title to the real estate conveyed to Reynolds and the College be quieted and that Elsie M. Turpin be declared to be the sole owner of the personal property left by Berthel Turpin. From this judgment we have the present appeal.

I. It is evident the major question in the case is the proper interpretation of the will of Berthel and Elsie M. Turpin. This in turn depends on whether there is sufficient evidence that it constituted an irrevocable contract between them that their property should descend, upon the death of the survivor, to the devisees and beneficiaries named in the will.

Before going into a detailed discussion of the evidence on this point and the governing authorities, it will be profitable to clear up some confusion in our cases concerning terminology. In fact, the conclusion is not solely ours. Other courts, and legal profession generally, have been given to use of terms describing wills which lead to misunderstanding. The problem is thus stated in 57 Am.Jur., Wills, Section 681, pages 458, 459: 'The courts have not been discriminate in defining the the terms 'joint', 'mutual', and 'reciprocal' wills. In many instances it is impossible to deduce the meaning of the decision in a particular case unless the reader looks beyond the terminology applied by the court to the instrument involved and considers the real nature of the will and the provisions contained therein.'

It is the sometimes indiscriminate use of the words 'joint', 'reciprocal', and 'mutual' which needs clarification. Perhaps a statement of the terms as we now understand them, if followed, will be helpful in avoiding misunderstandings. A 'joint' will is nothing more than a single testamentary instrument constituting the wills of two or more persons, jointly executed. The term refers to form rather than substance. It is in effect the separate will of each maker, and generally may be separately probated on the death of each. 97 C.J.S. Wills § 1364, pp. 282, 284.

'Reciprocal' wills are those in which two or more testators make testamentary dispositions in favor of each other. This may be done by one will, in which case the will is both joint and reciprocal, or it may be done by separate wills. 97 C.J.S. Wills § 1364, pp. 288, 289. The fact that wills, otherwise reciprocal, may contain bequests to third persons, does not necessarily destroy their character as reciprocal wills.

It is in the use of the term 'mutual' as applied to wills that the greatest confusion has arisen. The term 'mutual and reciprocal' has often been used in such a manner as to imply that they are identical, or at least of equivalent meaning. The question was not important when we held that the will itself, if joint, or the wills themselves, if separate, were sufficient evidence of a contract. But under our later holdings a joint will or separate wills, even if reciprocal, are not such evidence. It is necessary to point out that 'reciprocal' and 'mutual' may now have different meanings. A joint will, or separate wills, may be reciprocal without being mutual, although they may be both. For that matter, wills may be joint and reciprocal and mutual but they are not necessarily so. A will is 'joint' if it is the will of two or more persons in one instrument; 'reciprocal' if it contains reciprocal gifts or property among two or more makers; but it is 'mutual' in Iowa only if it is executed pursuant to an agreement. We quote from 97 C.J.S. Wills § 1364, p. 287: 'Under other authorities, the term 'mutual', so far as it relates to wills, appears to be applied and confined by the courts to wills which are executed in pursuance of a compact or agreement between two or more persons to dispose of their property, either to each other or to third persons, in a particular mode or manner, each in consideration of the other.' Cited in support of this proposition are Luthy v. Seaburn, 242 Iowa 184, 46 N.W.2d 44, and Maloney v. Rose, 224 Iowa 1071, 277 N.W. 572. We agree with the statement quoted. The term 'mutual' is properly applied to wills only when there is evidence sufficient to show a binding agreement as to disposal of the property of the makers in a certain way. If there is not such evidence, the wills may be reciprocal, but they are not mutual.

II. The will now before us was undoubtedly joint and reciprocal. The difficult question is whether it was also mutual. There can be no doubt that prior to our decision in In re Estate of Lenders, 247 Iowa 1205, 1214, 78 N.W.2d 536, 541, we had often said that the existence of a contract might be inferred from the execution of reciprocal wills by a husband and wife, at substantially the same time and each with the knowledge of the other. Jennings v. McKeen, 245 Iowa 1206, 1211, 65 N.W.2d 207, 209, 210; In re Estate of Johnson, 233 Iowa 782, 787, 10 N.W.2d 664, 667, 148 A.L.R. 748, 754; Culver v. Hess, 234 Iowa 877, 883, 884, 14 N.W.2d 692, 695; Campbell v. Dunkelberger, 172 Iowa 385, 389-392, 153 N.W. 56, 58. Many other cases to the same effect might be cited. In Campbell v. Dunkelberger, supra, at page 390 of 172 Iowa, at page 58 of 153 N.W., is this frequently quoted statement: 'But where the wills are in the same instrument and executed and signed by the parties, it is scarcely possible that this could happen without a previous understanding or agreement between them.' To the same effect is this language from Maurer v. Johansson, 223 Iowa 1102, 1107, 274 N.W. 99, 102: 'If, as in this case, the wills...