Fraizer v. Fraizer
| Decision Date | 16 March 1926 |
| Docket Number | 37307 |
| Citation | 207 N.W. 772,201 Iowa 1311 |
| Parties | EDWARD W. FRAIZER et al., Appellees, v. MARY FRAIZER, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED JUNE 21, 1926.
Appeal from Polk District Court.--LESTER L. THOMPSON, Judge.
SUIT in partition of real estate. The plaintiffs averred that the defendant was the owner of an undivided one fifth of the real estate, and that the plaintiffs were owners each of an undivided one fifth thereof. The defendant presents the contention that she is the owner of one third thereof, as the surviving widow of the deceased. The trial court found the issue with the plaintiffs, and entered decree accordingly. Defendant appeals.--Modified and affirmed.
Modified and affirmed.
C. C Putnam and Guy S. Calkins, for appellant.
Dale & Harvison, for appellees.
EVANS J. DE GRAFF, C. J. and ALBERT and MORLING, JJ., concur.
I.
The real controversy between the parties is centered upon an antenuptial contract. The plaintiffs are the four children of A. L. Fraizer, deceased. The defendant is his surviving widow; she is not the mother of his children. The plaintiffs pleaded an alleged antenuptial contract between their father and the defendant, whereby it was agreed that, in the event that the defendant should survive the decedent, she should take a one-fifth share of his estate, and no more. The issue thus tendered was met by the defendant with a general denial. She introduced evidence, however, tending to show that such alleged contract had been destroyed by the decedent in his lifetime, with intent to abrogate the same. The defendant also pleaded a prior suit pending, brought by herself, as plaintiff, against these plaintiffs, as defendants, and praying that her distributive share be set apart. She prayed in her answer that such suit be consolidated with the present case. No consolidation appears to have been had. Nothing appears in this record to indicate the state of the pleadings or of the proceedings in the suit referred to. The controversy litigated herein is essentially one of fact. As the plaintiffs make the case, stated briefly, the defendant and the decedent were married at Quill Lake, Canada, in January, 1916, and lived together as husband and wife until his death, in July, 1922. The deceased was a widower, and the defendant a widow. Each had children by the former marriage, and each had property. Mrs. Horner, daughter of the decedent, lived in the vicinity of Quill Lake, Canada, and her father visited her there. Upon the invitation of Mrs. Horner, the defendant herein visited her at the same time. Both were guests at the Horner home for a period of one month following Christmas, 1915, at the end of which time the marriage took place. That antenuptial property arrangements were considered and discussed freely at the Horner home by Mrs. Horner (if not with her), is without dispute. Two weeks before the marriage, a formal instrument had been prepared by the notary public, who was a member of a firm of barristers at Quill Lake. This instrument was prepared in quintuple, and at least one copy thereof was taken by the decedent to the Horner home. The execution of the instrument by the parties thereto occurred in the office of the barristers. The marriage occurred in the same place, and on the same day. The original was first taken by the decedent and kept by him. After the marriage, the married couple took up their residence at the home of the decedent in the near vicinity of Des Moines, and there continued until his death. The original instrument carrying the signatures of the parties was not produced at the trial. It was traced from the hands of the decedent into the hands of the witness Burkett, a banker, in whose custody it remained for some time. Thereafter, it was taken by the decedent and left in the custody of Mr. Sullivan, formerly an attorney in Des Moines, and now deceased. This was done in the presence of one of the sons of the decedent. After the death of the decedent, members of the family sought to obtain the contract from Mr. Sullivan, who, however, was unable to find the same. The evidence does not show the detailed extent of the search for the instrument. It does appear, however, that none of the plaintiffs herein had possession or control thereof. It also appears that the office of Mr. Sullivan, which was in the Clapp Block, was destroyed by fire. It does not affirmatively appear that the instrument was destroyed thereby. The plaintiffs procured what they claimed to be one of the quintuple copies, and attached the same to their petition as an exhibit, and introduced the same as secondary evidence of the lost instrument.
As against the foregoing, the defendant testified that she signed certain papers in the office of the barristers, at the direction of the notary; that she did not know the contents nor the purport thereof; that she did not inquire as to their contents. Her excuse for her conduct is that she was embarrassed. She testified, also, that her signing was done after the marriage ceremony was performed, and not before. The defendant was not an ignorant woman; neither was she inexperienced. For four years prior to her marriage, she had been a traveling saleslady for a commercial house. For seven years prior to such employment, she had managed a rooming house. She was not deficient in ability to read or to write. She was, at the time, about 47 years of age, and does not appear to have been under physical disability of any kind. The copy presented by the plaintiffs was upon paper which carried the printed professional card of the firm of barristers in whose office the original contract was prepared and signed. Its close resemblance to the paper or papers signed by the defendant was conceded by her as a witness. Other witnesses identified the copy as one of the duplicates originally made by the notary. The testimony of Mrs. Horner, to the effect that the contents of the contract were freely discussed, has significant corroboration in the testimony of the defendant herself, who testified as follows:
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