In re Cheney's Estate

• Decision Date: 16 June 1937
• Docket Number: 43858.
• Parties: In re CHENEY'S ESTATE. v. GENUNG. CHENEY
• Court: Iowa Supreme Court

274 N.W. 5

223 Iowa 1076

In re CHENEY'S ESTATE.

CHENEY v. GENUNG.

No. 43858.

Supreme Court of Iowa.

June 16, 1937

Appeal from District Court, Mills County; Grover Brown, Judge.

Action at law to enforce claim against estate of decedent based upon a promissory note. The jury returned a verdict in favor of the claimant, and judgment was entered thereon. From such judgment and the rulings of the court, the defendant executor appeals.

Affirmed.

Genung & Genung, of Glenwood, and John J. Hess, of Council Bluffs for appellant.

Cook & Cook, of Glenwood, for appellee.

DONEGAN, Justice.

Mary A. Bellatti Cheney, a resident of Mills county, Iowa, died testate on the 26th day of July, 1935. Her will was duly probated, N. S. Genung was appointed executor thereof, and on September 16, 1935, Annie B. Cheney filed a claim against the said estate based upon a promissory note, a copy of which was attached to the claim. Said alleged promissory note was signed " Mary A. Bellatti Cheney," was dated September 20, 1932, and contained the promise " to pay to Annie B. Cheney or order, at the Emerson State Bank Emerson, Iowa, Nine Thousand Dollars only, for value received, with interest, payable semi-annually, at five per cent per annum after date, defaulting principal and interest to bear interest at the rate of eight per cent per annum payable semi-annually." Hearing on said claim was fixed for the 16th day of March, 1936, and, on the morning of that day, the executor filed an answer, in which he denied generally all the allegations of the claim, and specifically denied that the signature attached to said note is the genuine signature of Mary A. Bellatti Cheney, that there was any consideration passed between Annie B. Cheney and Mary A. Bellatti Cheney for said note, and that there was any valid delivery of said note by said Mary A. Bellatti Cheney to said Annie B. Cheney. On motion of the claimant the allegations of the answer, in reference to lack of consideration and absence of valid delivery, were stricken, and the cause proceeded to trial. At the close of the claimant's evidence the defendant executor filed a motion for a directed verdict in his favor, based upon four separate grounds. This motion was overruled by the court, and thereupon the defendant executor filed an answer as follows:

" Comes now the defendant and for the purpose of conforming the pleading to the proof and states that the purported note upon which the claim is based was without consideration and was, if anything, a gift from the said Mary A. Bellatti Cheney to the claimant and is without consideration, void and of no validity or effect."

Thereupon, on motion of the claimant, this answer was stricken from the files. The trial proceeded, and evidence was introduced by the defendant executor. At the close of all the evidence, the defendant executor renewed his motion for a directed verdict, made at the close of claimant's evidence, which motion was likewise overruled. The case was submitted to a jury upon instructions and the jury returned a verdict in favor of the claimant. A motion of the defendant for judgment notwithstanding the verdict, based upon four separate grounds; a motion for a new trial, based upon twenty-one separate grounds; and exceptions to instructions, based upon six different grounds, were filed in due time, and, upon hearing, were all overruled, and judgment entered on the verdict. From this judgment, and from all rulings of the court, the defendant executor appeals.

Appellant's brief and argument contains ten separate divisions, each of which goes to some ruling or action of the trial court concerning which complaint is made. While the brief points and arguments of these divisions comply substantially with rule 30 of this court, we regret to say that there is far from being a compliance with the provisions of that rule in reference to the statement of errors relied upon for reversal. The motions for a directed verdict, motion for judgment notwithstanding the verdict, motion for new trial, and exceptions to instructions, are each based on several separate and distinct grounds, but, in making his complaint as to the rulings of the trial court, there is frequently such an entire failure on the part of appellant to point out which ground of the particular motion is involved in the alleged error that we have found some difficulty in trying to determine the precise errors on which he relies.

I.

In division 7 of his brief and argument appellant complains of the trial court's ruling in striking from his original answer the allegations thereof in regard to want of consideration and nondelivery of the note in question; and, in division 8, he complains of the ruling of the trial court in striking his answer, filed at the close of claimant's evidence, setting up the defense of want of consideration. As we shall later see, want of consideration and nondelivery were affirmative defenses that could be pleaded and proved by the defendant executor. The answer filed on the day that the trial began was stricken because filed too late. The answer filed at the close of claimant's evidence was stricken because it was a repleading of matter stricken from the original answer and was not, as it alleged, a pleading to conform to evidence that had been introduced. The record shows that the claim here involved was filed on the 16th day of September, 1935, and that on the 14th day of November, 1935, the claimant served on the executor a written notice of hearing of said claim at the November term of court convening on the 26th day of November, 1935. It is stated by claimant, and not denied by the executor, that the claim was not tried at the November term but was continued to the February, 1936, term of the court, at the request of the executor. On December 24, 1935, the claimant filed a trial notice which placed the case on the list of cases for trial at the February term of court convening February 25, 1936, and on the opening day of court the case was assigned for trial on March 4, 1936. On February 25, 1936, on application of the executor, the claimant was ordered to file the note claimed on with the clerk of the court for the inspection of the executor. It is stated by the claimant, and not denied by the executor, that, some time before March 4, 1936, at the request of the executor, the trial of the case was again continued and fixed for March 16, 1936. Neither at the time these answers were stricken, nor at any time during the trial, did the defendant executor offer or attempt to support either of these answers by affirmative evidence as to lack of consideration or nondelivery, and the record contains no intimation that any such evidence would have been presented if either answer had not been stricken.

The record shows no excuse nor explanation for the delay in filing the answer that was filed on March 16, 1936. While the trial court might have allowed this answer to stand, the decision made by him was one that was within his discretion, and under the facts above set forth we find no ground for holding that this discretion was abused.

II.

Appellant urges error on the part of the trial court in overruling his motions for a directed verdict on the ground that the evidence of the claimant herself shows want of consideration and nondelivery of the note upon which the claim is based. The appellant contends that the testimony of the claimant tends to show that the note in question was without consideration; that, being without consideration, it was a mere gift and could not be enforced as a contract; and that, being without consideration, and not being a delivery of the $9,000 itself, but only a promise to pay $9,000 in the future, it was a mere promise to make a gift in the future and could not be enforced against decedent's estate. That a promissory note for which there is no consideration amounts to no more than a gratuitous promise to pay the sum stated in the note at a future time, and is, therefore, a promise to make a gift in the future, which cannot be enforced against the promisor or his estate, seems to be well established. Meginnes v. McChesney, 179 Iowa, 563, 160 N.W. 50, L.R.A.1917E, 1060; Latcham v. Latcham, 195 Iowa, 221, 191 N.W. 977.The difficulty, however, in applying that rule to the facts in this case, is that the claimant did not introduce any testimony whatever, other than the note itself, from which any inference could be drawn as to consideration. The note itself imported a consideration, and the burden was upon the appellant to prove want of consideration. Code, §§ 9440, 9484 and 9488; In re Estate of Work, 212 Iowa, 31, 233 N.W. 28; In re Estate of Chismore, 175 Iowa, 495, 157 N.W. 139; In re Estate of Rule, 178 Iowa, 184, 159 N.W. 699; Scott v. Morse, 54 Iowa, 732, 6 N.W. 68, 7 N.W. 15; Saddler v. Pickard, 142 Iowa, 691, 121 N.W. 374.Of course, if the claimant's evidence would prove this want of consideration, this would negative the presumption of consideration contained in the note itself, but, so far as we can find from the record, there is nothing whatever in the claimant's evidence concerning consideration, and, consequently, there is nothing in the evidence tending to negative the existence of the consideration imported by the note itself.

Likewise, in regard to the question of delivery, the note being in the possession of the claimant, the provision of Code, § 9476 (section 16), which states that, " where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved," would apply. See, also, In re Estate of Rule, supra, and Lusby v. Wing, 207 Iowa, 1287, 224 N.W. 554.In addition to the presumption of delivery raised by the...