In re Farley's Estate

• Decision Date: 15 October 1946
• Docket Number: 46899.
• Citation: 24 N.W.2d 453,237 Iowa 1069
• Parties: In re FARLEY'S ESTATE. FARLEY v. BRAINARD.
• Court: Iowa Supreme Court

24 N.W.2d 453

237 Iowa 1069

In re FARLEY'S ESTATE.

FARLEY v. BRAINARD.

No. 46899.

Supreme Court of Iowa

October 15, 1946

Crary & Crary and A. C. Hatt, all of Sioux City, for appellant.

Griffin & Griffin, of Sioux City, for appellee.

PER CURIAM.

This is a rather unusual will contest. Maurice E. Farley, testator herein, was for many years a member of the police department at Sioux City, Iowa. He was twice married. A daughter by his first marriage, Mary Lucille, married George Brainard. The first wife and said daughter are deceased. Patricia J. Brainard, the only child of Mary Lucille survived testator and, as his granddaughter, is his only heir at law. Sarah I. Brainard, Patricia's paternal grandmother, as legal guardian for Patricia, is the contestant herein. After the death of his first wife, Farley married Katie J. Farley, who is the proponent herein. It would seem to be advisable to make a brief statement of the essential facts shown by the record before stating the legal questions that arise therefrom.

Proponent married decedent on June 18, 1919. Ten years later, February 19, 1929, the will, that was offered for probate herein, was executed by decedent in the office of George Yeaman, a lawyer, at Sioux City. At the same time proponent executed her own will. The two wills contained reciprocal provisions. Farley's will bequeathed $2,000 to his daughter, Mary Lucille Brainard (contestant's mother), $2,000 to Mrs Ernestine Hale (proponent's mother) and the residue of the estate was devised to his wife, the proponent, Katie Farley, who was also nominated as executrix. Katie's will was not introduced in evidence. Mr. Yeaman identified Mr Farley's will and testified: 'That is the will I prepared for Maurice Farley. Maurice signed it in my office that day, 19th day of February, 1929, * * * and that is Maurice Farley's signature. * * * I saw the two witnesses also sign their names at that time. Maurice Farley, himself declared that to be his will. Kate Farley also signed a will at the same time. She signed another will similar to that, as I remember it, and the same two witnesses witnessed her will. * * * Well, I mean by that one willed the property to the other and with the exception that Mr. Farley made a couple of bequests to other parties and gave to his wife Kate the balance of his estate and requested that she be made administrator or executor without bond. That is the way I remember, and when she read her will and signed it the same provision, as I understand it, was made, that she willed her property to him and made him executor without bond to carry out the terms of the will.' Mrs. Farley testified: 'I heard the testimony of Mr. Yeaman about I and Mr. Farley going to his office; about February 19, 1929, I executed a will in the office of Geo. Yeaman; at the time I made that will I was the possessor of some property in my own right. Approximately, I owned a home at 1906 West Florence and the lots, and part of the home at 313 South Turner and a partnership in our home. My will of February 19, 1929 remained in effect until the 21st day of July, 1944.'

On September 18, 1942, proponent and decedent were divorced. Under a stipulation for division of their property, approved by the decree, Mrs. Farley received two Sioux City properties, the household goods and $8,500 cash. The stipulation provided further: 'Upon fulfillment of the covenants of the said Maurice E. Farley herein above set forth the said Katie J. Farley agrees that she will make no further claim on the said Maurice E. Farley for any alimony or support money and does by this Stipulation release the said Maurice E. Farley from any future liability for her support and maintenance, and does hereby release and relinquish any right, title, or interest in and to any bonds and securities heretofore owned by Maurice E. Farley and Katie J. Farley.'

On July 6, 1944, Farley executed a new will in the office of George H. Flynn, a lawyer, in Sioux City. This will was not offered for probate; it was not found after Farley's death; counsel on both sides appear to agree that it is presumed to have been destroyed by Farley before his death. A copy of this will was produced by Mr. Flynn. He testified to its proper execution as a will. The copy of the will declared it to be Farley's last will and testament and that he does 'hereby revoke all former wills * * * which are hereby declared to be null and void.' This will provided for payment of debts, directed the executors to set aside $200 for masses and bequeathed all the residue to Farley's granddaughter, Patricia, contestant herein, with a request that she pay her grandmother $350. Patricia and her grandmother were nominated as executrices.

Mr. Yeaman testified that, shortly after Farley's death, he had a conversation with Mrs. Farley, in which she told him that, at the time of the divorce, she had destroyed her will and had given Farley his will. Mrs. Farley denied making any such statement.

On July 26, 1944, Mrs. Farley executed a new will in the office of Mrs. Edith V. Forsling, a lawyer, in Sioux City. Mrs. Forsling practiced law as Edith V. Cover, her name before she married Judge Forsling. She had been the attorney for Mrs. Farley in the divorce proceedings and appeared for her when the will of Mr. Farley was offered for probate. Contestant objected to the competency of Mrs. Forsling as an interested party under the dead man's statute. Code 1946, § 622.4. Mrs. Forsling had withdrawn as an attorney in this cause and the court overruled the objection.

Mrs. Forsling testified that, at the time of the divorce proceedings, when the stipulation for their property settlement had been signed, Mr. Farley in the presence of Mrs. Farley asked Mrs. Forsling if it would be all right to let their two wills stand. She assured him that their wills would be good as they were and he said, 'Very well, let them stand.'

Mrs. Forsling testified that the first draft of Mrs. Farley's new will was prepared July 21, 1944; it was executed on July 26, 1944; before it was signed it was presented to Mrs. Farley and, in the presence of Mrs. Farley, Mrs. Forsling asked him if it was the way he wanted it and he said, 'Yes, that is fine, Edith'; the will was then executed and Mr. Farley was given a copy of it; Mrs. Forsling then asked Farley what he expected to do about his will and he said, 'That is fine and just let that stand as it is'; thereafter Mrs. Forsling destroyed the will that Mrs. Farley had made in 1929, at the direction of Mrs. Farley; Mr. Farley remarked, 'You know, neither Katie nor I are very well, and I think that when we both get on our feet we will go back together.'

Mrs. Farley's will of July 26, 1944, revoked all prior wills, provided for the payment of debts, bequeathed certain jewelry, china and silver to a niece, $500 each to an aunt and uncle, devised the residue to three sisters subject to a life estate therein to her former husband, Maurice Farley, nominated Farley as executor and designated Edith V. Cover as attorney for the estate.

The foregoing are merely the highlights of the evidence. As heretofore stated, they have been reviewed to afford the background for a statement of the legal questions presented herein. Other evidence will be referred to later in connection therewith.

At the close of the evidence, both sides made motions for directed verdicts. Contestant's motion asserted: on the whole record the evidence was insufficient to sustain a verdict for proponent; the will, that is offered for probate, was revoked by operation of law about the time of the divoce proceedings in 1942; the will was revoked by the later will of Farley in 1944; proponent is basing her right to probate of the will on an alleged oral contract and her remedy is for specific performance or damages in case of a breach thereof. This motion was overruled.

Proponent's motion asserted: contestant has failed to sustain the burden of proof resting upon her and the evidence would not sustain a verdict for contestant; proponent and testator made a contract for reciprocal wills which was performed by both parties; Farley's will was not revocable except after notice to Mrs. Farley and no such notice was given; the evidence of revocation is not clear, satisfactory and convincing; if the will of July 6, 1944, constituted a revocation, it is shown to be lost and it is presumed to have been destroyed by testator with intention of revoking it and, under the undisputed evidence, it was the intention of testator to revive his original will of February 19, 1929; the overwhelming evidence is that he repeatedly reaffirmed his will of 1929 and any verdict to the contrary would be wholly unsupported by the evidence. This motion was sustained.

The will of February 19, 1929, was admitted to probate. Contestant appeals to this court. The errors assigned here do not relate to the contestant's motion for a directed verdict. They challenge the ruling on proponent's motion and the competency of Edith V. Forsling as a witness.

In some jurisdictions where both sides move for directed verdicts and do nothing more they thereby assume the facts to be undisputed. However, in Iowa, it is well established that the mere making of motions for directed verdicts by both parties does not amount to a concession that the facts are undisputed; there must be an express waiver of the right to have the jury determine disputed questions of fact. Bukowski v. Security Ben. Ass'n, 221 Iowa 416, 421, 265 N.W. 132, and cases cited. There was no such waiver herein. Accordingly, in determining whether the court was correct in sustaining proponent's motion for a directed verdict, it is necessary for us to determine whether there was a disputed question of fact, material to a...