Fleming v. Fleming

• Decision Date: 20 December 1920
• Docket Number: No. 32408.,32408.
• Citation: 194 Iowa 71,180 N.W. 206
• Parties: FLEMING v. FLEMING.
• Court: Iowa Supreme Court

194 Iowa 71

180 N.W. 206

FLEMING

v.FLEMING.

No. 32408.

Supreme Court of Iowa.

Dec. 20, 1920.

Appeal from District Court, Polk County; C. A. Dudley, Judge.

On petition for rehearing. Petition overruled.

For former opinion, see 174 N. W. 946.

Salinger, J., dissenting.

EVANS, J.

The justices concurring in the majority opinion heretofore filed are still satisfied that the case was properly decided. Because of some features of the argument in support of the petition for rehearing, we are disposed to add to the former opinion this further word of discussion:

The facts are sufficiently stated in the original opinion, and we shall not repeat them here.

We adhere to the view that the theory of joint tenancy in a common-law sense is not available to carry the appellants any further than the terms of their contract carry them.

If this contract by its own terms was effective to divest each of the contracting parties of his estate and to transfer the same to the survivor of them, then it were needless to say that a joint tenancy was or was not created.

If, on the other hand, the contract by its own terms was not effective to that end, then it was not effective to create a joint tenancy in the common-law sense. If the contract had purported in terms to create a common-law joint tenancy, a somewhat different argument would obtain at this point. It did not do so. On the contrary, it purported in terms to create a partnership. In determining the effect of the contract, therefore, we cannot add to its terms the legal fiction involved in a common-law joint tenancy. To do so would be to assume a joint tenancy as a major premise in order to prove it as a conclusion.

To put it in another way, the typical case of joint tenancy is ordinarily created by grant of a third party. It involves no necessary contractual relation between the joint tenants. In this case the alleged joint tenancy was not created by act of any third party. It was created, if at all, solely by the contract of the alleged joint tenants. Assuming for the purpose of this discussion that a joint tenancy may be thus created, it would be nevertheless a status created by the “contract” of the parties and not otherwise. Whatever the rights thus created, they must be determined in obedience to the contract and to nothing else. In the last analysis therefore we have before us a “contract”; nothing more, nothing less. Being a contract, it may be enforced as such unless there be some legal impediment thereto.

[1] Looking at this contract, what is its general nature or classification? Is it testamentary? Is it the equivalent of a contract to make a will? Is it a sale contract? Does it transfer property from one party to another? Does it obliterate the beneficial right and equitable title of any or all of the parties, to the property which is the subject-matter thereof, and which in the absence of contract would be owned in common by all? Notwithstanding the contract, did the parties thereto still remain the beneficial owners of the property involved? Manifestly no party to the contract could thereby be divested of his beneficial interest in the property except by the transfer of the same to some other party. By a series of instruments the four parties conveyed their legal title to a corporation organized by themselves as exclusive stockholders. Each received his pro rata number of shares of stock. Thereupon each purported to transfer his shares by indorsement and delivery. To whom did he indorse and to whom did he deliver? There was no transferee and no taker of delivery. They all put their shares into a common receptacle and locked them in the safe to await eventualities. The property still remained in the dominion of the same parties. Its benefits still accrued to them. No fifth party had acquired any interest in or incumbrance thereon. The property rights of the four parties respectively, whether legal or equitable, were mutual and exactly equal. If they had then attempted a partition as between themselves, each must have received his one-fourth thereof. In some respects the contract on its face attempted the impossible. It attempted to dispose of the respective interests of the partners and yet to retain the same; to do and yet not to do; to give and yet to withhold. In the nature of the case such contradictions are not enforceable. The net result is that the equitable and beneficial ownership of the joint property, thus manipulated, remained, and that the equitable or beneficial interest thus remaining to each party to the contract was an “estate” within the meaning of the law and was descendible as such in accord with the statute, subject only to the incumbrance created by the contract itself. The contract in question was therefore analogous to and fairly equivalent to a contract to make a will, and only in that character can it be given effect. It was not effective to pass a present estate in any particular property. Nor did it operate as an incumbrance upon particular property during the lifetime of decedent, whether owned jointly or in severalty. Its obligations were necessarily suspended as to each partner during his life. It became enforceable as an incumbrance, if at all, against his estate; after his death, and not before.

[2] The result is that the decedent left an estate; and the contract must be deemed to operate as a claim or incumbrance upon it either in part or in its entirety, in the same manner as a contract to make a will. Though therefore the contract he deemed enforceable as one to make a will, the question remains: Is it effective as against the widow of the decedent?

If in the absence of a contract the deceased partner had made a will disposing of his property to his brothers in the manner described by this contract, doubtless it would not be claimed that such will could be effective as against the widow.

Code, § 3376, provides:

“The survivor's share cannot be affected by any will of the spouse, unless consent thereto is given,” etc.

We have held that this section of the statute is applicable to personal property as well as to real estate. Ward v. Wolf, 56 Iowa, 465, 9 N. W. 348;Linton v. Crosby, 61 Iowa, 401, 16 N. W. 342;May v. Jones, 87 Iowa, 188, 54 N. W. 231; Code, § 3362. The statute therefore is an impediment to the operation of the husband's will upon his estate in such a way as to deprive the widow of her distributive share of either the personalty or the realty.

The question still remains whether the fact that the husband during life contracted to make such a will, will avoid the operation of section 3376. May the wife assert the impediment of the statute against the operation of such contract? If the statute disabled the husband from making a will detrimental to the wife, could the husband nevertheless make a valid contract obligating him to make such a will? Doubtless it were more accurate to say, not that the husband was disabled from making the will, but that the operation and effect of his will would under the statute be subject to the consent of the widow so far as her distributive share was concerned. A contract to make a will would be fully performed by the making of the will. Would the operation and effect of such will be subject to the provisions of section 3376? We answer yea. Though in this case no will was in fact made, the contract could nevertheless be enforced to the same extent as though the will had been made and not otherwise. The enforcement of the contract is subject to the limitations of the statute because the will itself would be subject thereto.

We are not unmindful that during the lifetime of the decedent there was no legal impediment to his disposing of his personal property. He could have sold it; he did not sell it. He could have transferred it perhaps even without consideration; he did not transfer it. There was no transferee. At this point we are not concerned with forms. We look to the substance of the property rights of this decedent. Though in form he transferred all his property to the corporation, he was the joint creator of the corporation and owner of one-fourth thereof. Though each of the four parties transferred his stock in severalty to all of them jointly, and thereby changed the form of his property right, he still owned the substance thereof. This is not saying that the contract was void and of no effect as against the decedent's estate. It is only saying that it is not effective to defeat the widow's right to her distributive share.

Construing and applying the statute broadly (sections 3362, 3376) to the purpose of its enactment, it leaves no opening for ingenuity to enable a husband to remain during life in full dominion of his property and yet to dispose of the same after death to the exclusion of the widow from her distributive share.

Personal property, it is true, would be subject to the good-faith indebtedness of the husband; but, as against the widow, it would not be subject to a mere scheme to absorb it. This does not imply that these brothers had a conscious purpose to wrong any surviving widow. Doubtless their only active purpose was to create the enterprise and to draw upon it for the care of all who were dependent upon them either severally or jointly. Though the contract imposed upon them no obligation in respect to any surviving widow, the surviving partners do recognize an obligation either moral or legal to care for the plaintiff as such surviving widow and they offer to provide her generous support. But the specific motive is not controlling. The right of a widow to her share of the estate, whether legal or equitable, owned by her husband at the time of his death, is impregnable; or it is not existent at all. This right does not arise out of any contract. Nor can she be required to accept generosity, however princely, in lieu of it.

[3] II. In our foregoing discussion we have assumed that the mutual promises were a sufficient consideration to support the...