In re Estate of Devoe

• Decision Date: 19 January 1901
• Citation: 84 N.W. 923,113 Iowa 4
• Parties: IN RE ESTATE OF A. B. DEVOE, Deceased, v. LUCRETIA E. ATKINSON, CARRIE E. DEVOE et al., CARRIE E. DEVOE, Appellant CARRIE E. DEVOE, Appellant, AND WILLIAM DEVOE
• Court: Iowa Supreme Court

84 N.W. 923

113 Iowa 4

IN RE ESTATE OF A. B. DEVOE, Deceased,

CARRIE E. DEVOE, Appellant, AND WILLIAM DEVOE v. LUCRETIA E. ATKINSON, CARRIE E. DEVOE et al., CARRIE E. DEVOE, Appellant

Supreme Court of Iowa, Des Moines

January 19, 1901

Appeal from Union District Court.--HON. H. M. TOWNER, Judge.

THE appellant, Carrie E. Devoe, is the widow of A. B. Devoe, who died intestate February 26, 1898. The appellees are the children of A. B. Devoe by former marriages. In August, 1898 William E. Devoe, one of the appellees herein, brought an action for the partition of real estate of which A. B. Devoe his father, died seised, alleging that the appellant, Carrie E. Devoe, had no interest therein except such as was provided by an antenuptial contract in writing entered into by her before her marriage to his father. In March, 1899, Carrie E Devoe applied to the probate court to have her statutory interest in the estate of her deceased husband set apart to her. This was contested on the ground that she had entered into an antenuptial agreement with her husband, in which she waived her statutory interest in his estate. To the claims of the appellees in both cases, based on the antenuptial contract, she pleaded fraud in procuring the same; that it was unreasonable, and contrary to public policy; and that it was expressly revoked and rescinded, and mutually disregarded and abandoned. After the issues were fully joined in both cases, they were tried together. There were judgments for the appellees therein, and Carrie E. Devoe appeals. The cases are submitted together on appeal.

Affirmed.

D. W. Higbee and Thos. L. Maxwell for appellant.

R. M. La Follette, G. E. Roe, and Sullivan & Sullivan for appellees.

OPINION

SHERWIN, J.

The evidence conclusively shows that an antenuptial contract in writing was entered into by the appellant and A. B. Devoe, her deceased husband, and that it was drawn by his attorney, Mr. J. H. Copenhaffer, and signed by both parties in his presence and in the presence of Mr. A. J. Bivens, and that it was witnessed by both Copenhaffer and Bivens, and duly acknowledged by the latter as a notary public. No entire contract bearing the signatures of the appellant and her husband has been discovered, but a few days after his death the following written instrument was found among his papers in their dwelling house: "Know all men by these presents, that we, A. B. Devoe, party of the first part, of Creston, Union county, Iowa, and Carrie Seely, party of the second part, of the said city of Creston, Union county, Iowa, have, and by these presents do, and in consideration of the sum of one dollar in hand paid by the parties to this contract to each other, and the further consideration of a solemnization of a marriage between these parties, do make and enter into the following contract, to-wit: That whereas, the said parties above set out have mutually agreed this day to become husband and wife according to law, and it is hereby forever agreed by them that each of them is to have the untrammeled and sole control of his or her own property, real and personal, as though no such marriage had taken place; and it is further mutually agreed by said parties that neither is to be holden or made liable for the debts or contracts of the other, but that each may sue and be sued and conduct his or her own business as though such marriage had never taken place. It is also agreed by the parties that, in case of the death of either without issue, his or her property shall descend and belong to the heirs of the deceased only; but, if there be issue resulting from the said marriage, then in that case, such children shall be entitled to a share equal with the other heirs of said A. B. Devoe, share and share alike. And it is further agreed that first party is to maintain said Carrie Seely in a decent and becoming manner, and said provision shall also apply to any children that may be born during said marriage; provided, always, that the said Carrie Seely, party of the second part, shall also in every way demean herself as a dutiful wife. It is also further agreed that, subject to the conditions of this contract, the said A. B. Devoe, party of the first part, shall have the right to convey or dispose of his property, real or personal, without consent or concurrence of second party, and without the signature of second party, the same as if these parties were unmarried. And it is further mutually understood that at the time of making this contract the first party is 73 years of age, and second party is 27 years of age; that first party has 7 children living from former marriages, and is worth perhaps, in real and personal property, the sum of fifty thousand dollars, more or less; and that second party has no children, and is worth no property, either real or personal, nor has he aided in the accumulation of first party's property. And the said second party, in consideration of the aforesaid, hereby agrees that she will claim no right of dower or to one-third of his estate, either real or personal, or homestead in or to any property which shall belong to the estate of said party of the first part at the time of his decease, provided she shall survive him. And the said party of the first part, in consideration of the premises aforesaid, hereby agrees that, in case that second party shall survive first party, said second party shall be allowed and paid out of the estate of said first party, by his executors or heirs, the interest at 6 per cent. per annum, payable semiannually, upon the sum of five thousand dollars, which shall be paid at and after the decease of first party. First party also agrees the second party shall be paid the further sum of three hundred dollars in cash by the executors or heirs at his decease, and that she shall have the right to select household and kitchen furniture worth not to exceed two hundred dollars at the date of decease. It is further understood and mutually agreed that the interest on the five thousand dollars shall cease at the death of second party, or at such time as she ceases to be the widow of first party, should she survive him; and, in consideration of promises heretofore made, second party accepts the same in full of all claims upon first party's estate of every kind whatever, including dower or homestead or any distributive" The original of this instrument is before us. It consists of four pages of legal cap, written on two unseparated leaves forming one sheet of paper, in the upper corner of which are paper fasteners. The paper itself shows very clearly that it is not complete, but from it and the other evidence, the district court found that it was a part of the antenuptial contract, and that it shows substantially the provisions thereof.

Appellees seem to have been of the opinion on the trial below that another complete antenuptial contract had at some time existed, but was either secreted or destroyed by the appellant, and on this theory they offered evidence tending to show the existence of such contract some time before the death of A. B. Devoe. The appellant, on the other hand, offered evidence showing that but one such contract had been executed by the parties, and, while not expressly admitting that the fragment above set out is a part thereof, she put in evidence as tending to show that it had been revoked by the destruction of a part thereof, and this position she supported by the testimony of witnesses. We think there can be no serious doubt that this writing is a part of the completed contract made by the parties, and that only one such contract was ever made. All the direct evidence on the subject shows that but one contract was signed by Mr. Devoe and the appellant, and the testimony of the only witness for the appellees who claims to have seen or read an antenuptial agreement between the parties is not so inconsistent with the terms of the one before us as to raise serious doubt as to the identity of the contract.

But the appellant contends that the paper before us is not competent evidence of the agreement, because it is incomplete, and does not bear the signatures of the parties thereto. This is based on the ground that the statute of frauds requires such contracts to be in writing, and that parol evidence can in no case be used to establish their terms. No case is cited by counsel which tends even to support this doctrine. The cases of Vaughn v. Smith, 58 Iowa 553, 12 N.W. 604; Watt v. Cranberry Co., 63 Iowa 730, 18 N.W. 898; and Leather Co. v. Porter, 94 Iowa 117, 62 N.W. 658; only touch the familiar rule relating to varying or enlarging written contracts by parol. Elwell v. Walker, 52 Iowa 256, 3 N.W. 64, mentions the subject, but does not rule thereon. The appellant's contention cannot be sustained by either reason or authority. The only purpose of evidence is to prove facts which shall establish the legal or equitable rights of suitors; and, while it is a general principle, firmly established in the interests of justice, that the best evidence capable of production shall be required, this rule in no way conflicts with the admission of secondary evidence of a lost instrument, even though it be one which the law requires to be in writing; for, if the instrument were lost without the fault of either party, or if it were wantonly destroyed or secreted by one, it would be a manifest subversion of justice to deny oral proof of its contents after satisfactory proof of its loss or destruction. This view is well sustained by authority. Greenleaf Evidence (13th ed.), sections 84, 86; 13 Am. & Eng. Enc. Law, 1119; Davis v. Strohm, 17 Iowa 421. And see Postel v. Palmer, 71 Iowa 157, 32 N.W. 257. And...