Gillette v. Cable

• Decision Date: 13 November 1956
• Docket Number: No. 48972,48972
• Citation: 248 Iowa 7,79 N.W.2d 195
• Parties: Jean GILLETTE, Mary Gillette Maurer, William R. Gillette, John M. Gillette, Charles Cable Gillette, Rita E. Gillette, Frances C. Gillette, Grace Fuller Johnson, Ida Fuller McSorley, Marion Fuller, James G. Fuller, and Quintus C. Fuller; and Roy R. Gillette, Beverly Gillette, Dorothy Gillette, Jerome Gillette, and James Gillette, by Roy Gillette, their father, Natural Guardian and Next Friend, Appellants, v. Emil Y. CABLE, Appellee.
• Court: Iowa Supreme Court

Page 195

79 N.W.2d 195

248 Iowa 7

Jean GILLETTE, Mary Gillette Maurer, William R. Gillette, John M. Gillette, Charles Cable Gillette, Rita E. Gillette, Frances C. Gillette, Grace Fuller Johnson, Ida Fuller McSorley, Marion Fuller, James G. Fuller, and Quintus C. Fuller; and Roy R. Gillette, Beverly Gillette, Dorothy Gillette, Jerome Gillette, and James Gillette, by Roy Gillette, their father, Natural Guardian and Next Friend, Appellants, v. Emil Y. CABLE, Appellee.

No. 48972.

Supreme Court of Iowa.

Nov. 13, 1956.

Linnan & Lynch, Algona, and James & Greer, Spencer, for appellants.

Cornwall & Cornwall, Spencer, and Loth & Melton, Fort Dodge, for appellee.

SMITH, Justice.

The question of testamental competence comes to us here in reverse form and with unusual complications. But it remains, we think, the same old, familiar--and usually troublesome--problem.

On January 30, 1951, Grace Cable, then 65, and her husband, defendant Emil Y. Cable (73) executed a joint will. After giving everything to the survivor, they devised 160 acres of Dickinson County land to Donald Emil Cable, son of their adopted son, Kenneth Riley Cable (subject to certain conditions); and 240 acres in an adjoining section to the seventeen named plaintiffs ('the following named nieces and nephews'); also to the children of defendant's deceased brother Henry R. Cable, 'the names * * * being to us now unknown.' The named seventeen are all children of Mrs. Cable's brothers Lester and Roy Gillette and of her sister, Mrs. Opal Fuller.

The explanation of the inclusion of Mr. Cable's brother's children is found in his testimony. The Cables and Mr. and Mrs. Lester Gillette were starting the next day to drive to California. Defendant says the only talk he had before January 30, 1951 about a will was with Mrs. Cable's brother, Lester. 'Several times he said we should make a will before we went to California. * * * Mrs. Cable and I did not talk at home or anywhere else about what should be in the will.'

He says Mr. Gillette and wife were at the Cable home and said 'We will call at your house and have you go along down to the office to draw up the will.' They (the Gillettes and Mrs. Cable) went to the lawyer's office at Spencer, in Clay County. 'The next day * * * we all four went to Spencer.' They did not talk about the will on the way. 'I first found out what the will said when the four of us went into the office and Mr. Greer handed me the will. * * * It was all written up.'

Defendant, after reading it carefully, said: 'Lester's and Opal's and Roy's children are mentioned; now I have a brother with four children, not very well to do and I would like to have their names added.' He could remember the nephew's name but not the names of the three nieces. The will was rewritten in the form in which executed. The next day they started for California in the Cable car. Mrs. Gillette denies she and her husband took Mrs. Cable to the law office prior to January 30, 1951, and denies they were present when the joint will was signed.

The immediate events involved here occurred September 10, 1952, when Mr. and Mrs. Cable executed new, separate, but reciprocal wills ('hereby revoking any and all former wills') by which each gave everything to the other 'absolutely.' Mrs. Cable nominated defendant as executor without bond; he nominated her as executrix, with 'my son Kenneth Cable' as alternate 'if she is physically unable to qualify'--in either case without bond.

Plaintiffs question Mrs. Cable's competence to make this later will. They also claim undue influence by reason of confidential relation between husband and wife such as to cast on defendant the burden of proving Mrs. Cable was not under its influence. They appeal from the decree in defendant's favor. While this suit is essentially a 'will contest' it is in equity and triable de novo on appeal, a matter to be kept in mind since so many of the authorities are jury cases.

Mrs. Cable died February 24, 1953, aged 68 years. She and defendant were married in 1915. They had no natural children but had, on December 21, 1935, adopted two boys, Kenneth Riley Cable (8) and Arthur Cable (12). Arthur is a carpenter. He farmed part of the land 'for a year or two' but 'married a girl from Philadelphia around April or May of 1944. Since his marriage, he has spent most of his time in the east.' However he had moved back at time of trial but seems not to have been called to testify. He was not mentioned in the joint will nor was Kenneth except as father of the devisee of 160 acres.

Kenneth lived on one of the farms involved here. The entire 400 acres stood in Grace's name. They had formerly owned 800 acres but had allowed the other 400 to go to clean up the mortgages during the hard times. 'We kept her 400 acres because we were living on it and had done a lot of building there and it was more valuable and had less mortgage.'

Mrs. Cable is quite universally described as having been a very intelligent, well-read woman, brilliant, above average. One witness (her sister-in-law) calls her 'a dominant woman, a person of her own opinion who was not swayed by anyone.' She had a Bachelor's Degree from Iowa State College and a Master's from Chicago University.

She was active in church and community affairs as well as a competent homemaker and housekeeper and business woman.

We are (naturally) not so well informed as to Mr. Cable. But the Record abundantly describes him as kind and solicitous in caring for his wife in her later days of sickness and physical disability and infirmity.

I. There are doubtless other pertinent factual details which will emerge as we discuss the opinion evidence and the law applicable to the issues here. We observe first that the test of mental competency to make the second will (September 10, 1952) is not different on account of the then existing joint, mutual one of January 30, 1951.

We may assume the earlier (joint) will would have been sufficient to evidence (or result in) a contract for the benefit of third persons named therein as ultimate devisees and legatees, had either maker died and the survivor taken advantage of and accepted the provisions made in the joint will for him by the other. Only if and when that happens does a binding contract emerge in such cases, which third party beneficiaries may enforce. Jennings v. McKeen, 245 Iowa 1206, 1210, 65 N.W.2d 207, and cases cited. In DeJong v. Huyser, 233 Iowa 1315, 1320, 11 N.W.2d 566, 569, we said: 'We have held repeatedly that in a joint will there is a contractual relation which becomes irrevocable after one of the testators dies and the other accepts benefits thereunder.' (Emphasis supplied.)

The cases cited by plaintiffs are in no disagreement with the postulate that no binding contract exists so long as both parties live. Either may revoke. 'But if there be no revocation before the death of one of the parties, the right of the survivor is thereby fixed * * * according to the terms of the mutual will.' Anderson v. Anderson, 181 Iowa 578, 584, 164 N.W. 1042, 1044. 'And where, as in the instant case, provision is made for third parties, the rights of such third parties are equally thereby fixed.' Child v. Smith, 225 Iowa 1205, 1215, 282 N.W. 316, 321. Few propositions are better established in our opinions.

II. But plaintiffs argue: 'In order to have the mental capacity to destroy, cancel and annul, the joint, mutual and reciprocal will * * * she would have to have more than the capacity to make a new will. * * * If her mental capacity were not equal to make a new will, she could not cancel and annul the previous one.'

We assume these two propositions are to be read together--the first modifying the second. So read we cannot approve the result, though the last sentence, standing alone, seems unobjectionable. But we find no logic for the intended contention that greater capacity is required to revoke a reciprocal will. There was no contract inter vivos that either party could not rescind in the lifetime of the other. Campbell v. Dunkelberger, 172 Iowa 385, 389, 153 N.W. 56; Anderson v. Anderson, supra; Jennings v. McKeen, supra; Luthy v. Seaburn, 242 Iowa 184, 46 N.W.2d 44. Nor was there any contract for third party benefit. As appellee aptly states: 'While both testators live, their joint will in ambulatory and revocable.' Third party beneficiaries have no right or interest that either testator may not disregard so long as both live.

We have read the authorities relied on by plaintiffs but find none that supports their thesis. Nor do we think it supported by reason.

III. Plaintiffs seem to argue that Mrs. Cable must have been competent to contract on September 10, 1952, in order to have had necessary mental competence to revoke the joint will of January 30, 1951. That there is a difference between competence to contract and competence to dispose of property by will is abundantly recognized in our decisions. Citation of authority seems almost unnecessary. See In re Estate of Ruedy, 245 Iowa 1307, 1315, 66 N.W.2d 387, citing Bishop v. Scharf, 214 Iowa 644, 653, 241 N.W. 3; Byrne v. Byrne, 186 Iowa 345, 172 N.W. 655; Womack v. Horsley, 178 Iowa 1079, 152 N.W. 65; In re Estate of Cooper, 200 Iowa 1180, 206 N.W. 95; In re Will of Kester, 183 Iowa 1336, 167 N.W. 614.

Plaintiffs' reasoning would logically require greater mental competence to revoke a mutual than an individual will in any case, at least where the mutual one contained provision for a third person beneficiary. But the premise is unsound. So long as both testators live there is no irrevocable contract. We have not found, nor have plaintiffs cited, any authority for their contention, or any consideration to suggest there should be such a decision.

Mutual wills are naturally resorted to only by persons closely bound by ties of relationship or of mutual friendship and interest. There is every reason for keeping them as readily revocable as are other wills. Plainti...