OPINION
WAGNER, J.
The
testate, Isaac Fetterman, died October 15, 1926. He left
surviving him his widow, Emma Fetterman, to whom he was
married on March 7, 1925, and he left as his surviving issue
his two daughters,--to wit, the claimant and Ida Sawyer,--and
children of Addie Jacobs, a predeceased daughter.
It
appears that the deceased and claimant and her husband became
involved in financial entanglements, in which the deceased
was making certain claims against his daughter, and they were
also making certain claims as against him. The deceased had
brought suit against the claimant, aided by garnishment
proceedings. Said suit was not brought to trial, but as a
settlement between the parties thereto, on July 16, 1925, the
following written contract was entered into between them:
"This
contract made and entered into this 16th day of July, 1925,
by and between Isaac Fetterman, party of the first part, and
Amy Scarber, party of the second part, witnesseth:
"Whereas,
party of the first part holds a note, executed by J. L.
Scarber and Amy Scarber, in the amount of two thousand
dollars ($ 2,000.00), dated May 28th, 1924, payable to the
order of Isaac Fetterman, and due one year after date and
which is now due and unpaid and
"Whereas,
party of the first part has other and different demands
against the said party of the second part or her husband, J.
L. Scarber and
"Whereas,
on or about the 16th day of March, 1925, said party of the
first part instituted a suit in the district court of the
state of Iowa, in and for Henry County, against party of the
second part by attachment and therein claiming the sum of one
thousand three hundred sixty-five dollars and fifty cents
($ 1,365.50) for money loaned and also the
said sum of two thousand dollars ($ 2,000.00) on the note
hereinbefore recited, and in said suit, garnished Amy
Scarber, administratrix, with will annexed, of the estate of
Emily J. Johnson, deceased, J. V. Gray, referee in partition,
and J. E. Carter, executor of the estate of Virginia Louisa
Fetterman and
"Whereas,
said party of the first part is obligated as either joint
maker or endorser, upon a note for four thousand dollars ($
4,000.00) dated May 28th, 1924, due one year after date and
in favor of the New London National Bank of New London, Iowa,
the other maker of said note being J. L. Scarber, which said
note is past due and unpaid and
"Whereas,
party of the second part claims that the note for two
thousand dollars ($ 2,000.00) hereinbefore recited, due May
28th, 1925, in favor of first party was a gift and without
validity and binding effect and
"Whereas,
party of the second part has heretofore made claim against
party of the first part for services rendered by herself or
her husband or both of them to the said first party or his
deceased wife, Virginia Louisa Fetterman and
"Whereas,
parties of both parts hereto desire, at this time, to adjust
and fully and completely settle all claims, demands and
controversies.
"Therefore, be it fully understood, agreed and
stipulated in the following manner and terms, to wit:
"1.
The party of the second part hereby undertakes and agrees
within five days from the execution of this contract, to
relieve and save harmless the party of the first part from
any liability upon the said note for four thousand dollars ($
4,000.00), dated May 28th, 1924, due one year after date in
favor of New London National Bank of New London, Iowa, upon
said note, first party and J. L. Scarber are makers. Said
party of the second part agrees to deliver or cause to be
delivered to said first party, said note within said fixed
time.
"2.
It is further agreed by and between the parties hereto that
the party of the second part shall pay to the party of the
first part, the sum of one hundred dollars ($ 100.00) a year,
to be paid semiannually, the first payment of fifty ($ 50.00)
to be made on January 16th, 1926, and thereafter on the 16th
day of July and the 16th day of January of each year, she
shall pay to him the sum of fifty dollars ($
50.00) during the remainder of his natural lifetime and that
at the death of the said Isaac Fetterman, there shall be
charged against Amy Scarber, party of the second part,
against her share in said estate, the sum of two thousand
dollars ($ 2,000.00) as an advancement to her.
"3.
It is further agreed by and between the parties hereto that
in consideration of Amy Scarber entering into the stipulation
of settlement and assuming the payment of four thousand ($
4,000.00) note of her husband at the New London National
Bank, on which Isaac Fetterman is surety, that said Isaac
Fetterman will make a will, willing to Amy Scarber, one third
of all his property he now has.
"4.
In consideration of the foregoing covenants on the part of
the second party, party of the first part agrees, on their
performance, that he will dismiss his case pending in the
district court of the state of Iowa, against party of the
second part, and will thereupon cancel, remit and forgive any
and all other demands which he has against party of the
second part.
"5.
Party of the second part, in consideration of the covenants
of the first party, on her part, hereby cancels, releases,
forgives and remits any and all demands which she has, at
this time, or had had heretofore, by herself or husband,
including all claims and all matters of indebtedness against
said party of the first part, or the estate of his deceased
wife, Virginia Louisa Fetterman.
"6.
By this stipulation of settlement, it is further agreed that
all matters of dispute and all claims and demands of every
kind whatsoever of either party hereto against the other
party are settled, released and cancelled and that any and
all claims of Isaac Fetterman as against J. L. Scarber, the
husband of Amy Scarber, are likewise cancelled, settled and
released, and any and all claims of the said J. L. Scarber
against the said Isaac Fetterman or the estate of his wife
are hereby released and cancelled."
On July
28, 1925, the decedent executed his last will and testament,
ordering and directing therein that his executor pay off and
discharge all the debts and liabilities that might exist
against him at the time of his decease. The remaining
provisions of his will are as follows:
"2nd. I give and bequeath to my wife, Emma
Fetterman, at my death one third (1/3) of all my real and
personal property, during her life and at her death the
property is to be divided equally between my heirs.
"3rd.
I give and bequeath to Ida Sawyer, at my death, one third
(1/3) of all my real and personal property.
"4th.
I give and bequeath to the heirs of my deceased daughter,
Addie Jacobs, at my death one third (1/3) of all real and
personal property.
"5th.
I give and bequeath to my daughter, Amy Scarber, at my death
one third (1/3) of all real and personal property, excepting
$ 2,000.00 (Two Thousand Dollars) which she has already
received which should be deducted from her share of my
estate, and divided equally between the other heirs, Ida
Sawyer, the heirs of Addie Jacobs, deceased."
Said
will was duly admitted to probate. The widow elected not to
take under the will of her deceased husband.
The
claimant, in her claim against the estate, alleges the
execution of the aforesaid written contract between her and
her father; that, at the time of the signing of said
contract, her father owned property to the value of $ 45,000;
that, by the terms of said contract, there was to be charged
against her the sum of $ 2,000 as an advancement; that she
has performed all the obligations of the aforesaid written
contract which were to be performed upon her part, and the
said Isaac Fetterman failed to make a will willing to her one
third of all the property he owned on the 16th day of July,
1925. She asks that her claim be allowed in the sum of $
13,000.
The
executor in one count of his answer sets up a general denial.
In another count he alleges that the agreement has been
breached by claimant, and that she has wholly failed to
perform the obligations imposed upon her under the written
agreement. In another count of his answer he alleges full
performance of the written contract by the decedent. In still
other counts of his answer he alleges want of consideration,
failure of consideration, estoppel, and fraud by reason of
fiduciary relationship existing between the claimant and her
father.
The
plaintiff's reply to the averments of the answer
consisted of a general denial and certain admissions therein
made.
At the
trial, the claimant proved the execution
of the aforesaid written contract, and the
same was introduced in evidence. The will and the fact of its
admission to probate were admitted in evidence, and the fact
that the widow elected not to take under the will became a
part of the record. The record fails to reveal the fact as to...
