In re Estate of Conner
| Decision Date | 24 September 1948 |
| Docket Number | 47213. |
| Citation | 33 N.W.2d 866 |
| Parties | In re CONNER'S ESTATE. |
| Court | Iowa Supreme Court |
Appeal from District Court, Keokuk County; Frank Bechly Judge.
C J. Lambert, of Sigourney, and Bailey C. Webber, of Ottumwa for appellants John Herman, Elvin E. Herman, and Ernest A. Herman.
W. H. Hamilton, of Sigourney, for appellee C. G. Updegraff, executor of Zanette Conner estate.
Jones & White, of Ottumwa, for appellee Ellis C. Conner.
The action is in probate and grows out of certain proceedings in the estate of Zanette Conner. The executor, C. G. Updegraff, filed a final report therein and to this final report objections were filed by certain interested parties, all beneficiaries, heirs, or claimed heirs of Martha E. Conner Herman. The cause was tried to the court as a law action. Said objections were overruled, the final report was approved, and this appeal followed.
I. A brief summary of some of the events and incidents covering the period involved will be set forth.
Jacob Conner and Zanette Conner, husband and wife, had lived on a farm in Keokuk County, Iowa, for many years. To this union one child, Martha, sometimes hereinafter referred to as Mattie, was born. This daughter, prior to 1925, married John Herman, and to this union were born two sons, Elvin and Ernest. Martha died October 14, 1944, and by will devised all of her property to her husband.
On February 3d, 1925, Jacob Conner and Zanette Conner made a joint or reciprocal will. Jacob died October 19, 1936, and his estate was administered under said will. Zanette died March 17, 1946, and the reciprocal will was again probated. C. G. Updegraff was appointed executor in both estates and qualified as such.
The will devised certain specific real estate to Martha E. Herman and likewise certain specific real estate to Ellis C. Conner. The will provided that on the death of either of the testators the survivor was to have the use and benefits of the devised property during the life of such survivor. The will further provided that upon the death of either of the testators the executor should pay all debts, expenses, etc. from the personal property belonging to such estate and that any unpaid balance was to be divided equally between Martha E. Herman and Ellis C. Conner was to become a charge upon the property specifically devised to Martha E. Herman Ellis C. Conner.
Neither the reciprocal will nor the devises to Martha or Ellis are involved in this case.
II. The storm center of this controversy relates to the status of Ellis C. Conner. He was born in a Chicago hospital some time in February, 1903, and shortly thereafter was brought into the home of Jacob and Zanette Conner and resided there until his marriage, some time prior to the death of Jacob. While in the home of Jacob and Zanette, he attended school, worked on the farm, and at various times was referred to or spoken of as the adopted son of Jacob and Zanette. In an inventory filed by the executor in the estate of Jacob Conner on February 11, 1937, he was listed as: 'Ellis C. Conner, 33, grandson, Sigourney, Iowa, born February 27, 1903.' He married, has a family, and at all times has lived in the Conner neighborhood. It is his claim that he is an illegitimate son of Martha and was born to her prior to her marriage to John Herman. As such son of Martha he claims the right to share equally with her other sons, Elvin C. Herman and Ernest A. Herman. This claim of Ellis was resisted by the surviving husband, John Herman, and his sons Elvin and Ernest.
The trial court made a specific finding that Ellis was a son of Martha; that he was entitled to share with her other heirs in and to certain real and personal property coming to them as the residuary legatees under the reciprocal will and that he was entitled to receive a $400 time certificate of deposit in the Hayesville Savings Bank of Hayesville, Iowa, issued by said bank on December 18, 1944, to 'Zanette Conner or Ellis Conner, survivor,' holding that said $4000 certificate had been a gift inter vivos from Zanette Conner to Ellis Conner. The court thereby approved the final report of the executor that Ellis Conner was the son of Martha Conner and as such was entitled to inherit from her.
III. The objector, Ellis C. Conner, did not appeal. The Hermans, father and two sons, are the appellants.
The principal questions raised in the appeal relate to the competency of various witnesses offered on behalf of appellees, their testimony, refusal of the court to sustain objections to testimony offered and the refusal to strike certain testimony, and the correctness of the findings of fact and conclusions of law, wherein the trial court sustained the final report of the executor; the property claims and relative rights of Ellis C. Conner; and the denial of claims made by the appellants. In brief and arguments the various errors set forth by appellants are in some instances so related that they are argued together. We think that in essence the principal matter in dispute relates to the status of Ellis C. Conner and whether he is the owner of the $4000 time certificate, 'Exhibit C,' issued by the Hayesville Savings Bank on December 18, 1945, in which certificate Zanette Conner or Ellis Conner, survivor, were the payees named, said certificate being a renewal of the certificate marked Exhibit L, dated December 18, 1944. Ellis Conner claimed to be the son of Martha Conner Herman and as such had rights of inheritance in and to the estate of Jacob Conner and Zanette Conner equal to such rights of her husband and her sons, Ernest and Elvin: he also claimed the $4000.00 certificate as a gift inter vivos from Zanette Conner.
The brief and argument of D. G. Updegraff, the executor, and that of Ellis C. Conner are for the most part along similar lines. They are represented by different counsel and each has filed separate briefs and arguments.
Preliminary to the consideration of the questions raised in this appeal we will add to the statement already set forth several matters which we feel are quite important.
On February 3, 1925, Jacob and Zanette Conner executed what they designated therein as 'our joint and reciprocal will.' The second unnumbered paragraph relates to their property and is as follows: 'That whereas, all our property is in truth and in fact held and owned by us jointly, regardless of how the record legal title may appear;'
When Jacob died on October 19, 1936, the will was offered for probate. Objections were filed thereto by his widow, Zanette. Zanette had a sister, Iowa, who had married John Keister. Iowa Keister died just prior to the death of Jacob and from her estate Zanette received something like $8,000. Zanette objected to the inclusion of this sum as being property owned jointly by herself and Jacob. Following the filing of the objections of Zanette, it was agreed by all of the interested parties in Jacob's estate that any property received by Zanette from the estate of Iowa Keister should not be included in the property mentioned in the reciprocal will, but was to be owned separately by Zanette. This agreement was approved and confirmed by order of court on January 7, 1937, and such property was used by Zanette as her own.
After Jacob died and his estate was opened the question arose as to the sufficiency of the personal estate to pay claims against the estate, expenses and costs of administration. According to the inventory in Jacob's estate the personal property was valued at about $1500. The record shows that the debts of his estate and expenses of administration were more than double that sum. It is claimed by appellees that after the death of Jacob, his widow, Zanette, desired to continue the farming operations and needed livestock and machinery for that purpose; that all the interested parties agreed that if Zanette would pay the estate debts and charges against same, from her separate property, all the personal property covered by the joint will should become her property; that this was done and Zanette took care of all the debts and charges due from Jacob's estate. Such claim is disputed by appellants and is one of the questions involved in this appeal. However, the trial court sustained such claim as made by appellees.
The joint will was drawn by C. G. Updegraff. Such will designated him as executor. He served in that capacity in Jacob's estate, and is now serving in a like capacity in Zanette's estate. In Jacob's estate he prepared and filed a probate inventory on February 11, 1937. This inventory sets forth the beneficiaries under the will, or heirs-at-law in interstate matters. They are: Zanette Conner, 71, surviving spouse; Martha E. Herman, 50, daughter born April 14, 1886; Ellis C. Conner, 33, grandson, born February 27, 1903.
Following the death of Zanette on March 17, 1946, the executor filed a probate inventory in her estate. Under the head of Beneficiaries under Will or Heirs at Law in Intestate Matters appears, 'Children of Martha E. Herman, a predeceased daughter of said decedent; Ellis C. Conner, adult, grandson, Sigourney, Iowa, Ernest A. Herman, adult, grandson, Sigourney, Iowa, Elvin E. Herman, adult, grandson, Sigourney, Iowa.'
In such probate inventory under Schedule I (cash, money on deposit certificates of deposit, accounts receivable) there is set out the $4000 certificate of deposit in the Hayesville Savings Bank heretofore referred to. Immediately following such entry we find the following: ...
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