In re Jenkins' Estate

Citation205 N.W. 772,201 Iowa 423
Decision Date17 November 1925
Docket Number36777
CourtUnited States State Supreme Court of Iowa

205 N.W. 772

201 Iowa 423




No. 36777

Supreme Court of Iowa, Des Moines

November 17, 1925


Appeal from Poweshiek District Court.--D. W. HAMILTON, Judge.

ACTION in probate, to require the defendant, the executor of the estate of Mary A. Jenkins, deceased, to file with the court his report, showing receipts and disbursements, together with an inventory, and for an order that he turn into court the assets of said estate. Plaintiff prays that said executor be removed, and that an administrator de bonis non with will annexed be appointed. From an order granting the relief prayed, the defendant appeals.


Lewis & Dickson, for appellant.

T. A. Lane, for appellee.

ALBERT, J. FAVILLE, C. J., and EVANS and MORLING, JJ., concur.


[201 Iowa 424] ALBERT, J.

The will of Mary A. Jenkins was admitted to probate on the 6th of April, 1922, and the appellant was appointed executor on the 30th of May following. The will, so far as material hereto, after providing for the payment of her debts and funeral expenses, reads as follows:

"2. I give, devise and bequeath to my son, Charles R. Jenkins, my home property located in Deep River, Iowa.

"3. I give to my daughter, Lucetta J. Mercer, the sum of $ 500."

In the fourth paragraph she names the appellant executor of the will.

It is conceded by all parties concerned that, at the time of her death, Mrs. Jenkins' estate consisted of what is known as the home property in the town of Deep River, being two lots in Block 2, another lot in said town somewhat distant from the aforesaid property, some household furniture, and a certificate of deposit in the State Bank of Deep River for the sum of $ 1,000, on which there was $ 50 interest due at the time of her death.

On the 15th of May, 1923, the appellant, as executor, filed an inventory, in which he set out all of the above described property. The claim of the appellee herein, Lucetta J. Mercer, is that, in addition to the above and foregoing described property, the deceased was the owner of a claim, and was party to a litigation in Marshall County district court, brought by one Araminta Collins and the deceased against one W. D. Mantell, to set aside a deed made to Mantell of 160 acres of land in said county; that, under the will of Araminta Collins, the deceased was given three shares of bank stock and $ 1,200 in cash. Appellee claims that the appellant, as executor, has failed to report, inventory, and account for these matters; that he has become a resident of the state of California; and that for such neglect and failure on his part to so report, and further because he has ceased to [205 N.W. 773] be a resident of the state of Iowa, he should be removed as executor.

The defense made by the appellant is that, on the 6th day of April, 1922, Lucetta J. Mercer (and her husband) made a writing as follows:

[201 Iowa 425] "Release and Quitclaim"

"I, Lucetta J. Mercer, of Iowa County, Iowa, in consideration of the sum of One Dollar and other consideration do hereby release, assign, quitclaim and convey unto Charles R. Jenkins all interest I may have in and to the estate of my mother Mary A. Jenkins, deceased, late of Deep River, Iowa, and I do consent that her estate may be closed without any notice on me.

"F. M. Mercer, husband of Lucetta J. Mercer, joins herein and releases any claim of any kind that he might have in said estate including dower.

"Dated this April 6, 1922.

"Lucetta J. Mercer.

"F. M. Mercer."

This paper was acknowledged before Charles W. Clark, a notary public. Appellee replies by admitting that she and her husband signed said instrument, but says that the signatures were procured by statements made by Charles R. Jenkins and his attorney, Charles W. Clark, that it was a receipt for $ 500, representing the bequest made to her under the will of her mother; that she believed said representations and relied on the same. She further alleges that Jenkins stated that he had nothing to do with the estate of Araminta Collins or the lawsuit then pending, and that said receipt did not in any way relate to or affect Lucetta Mercer's interest in anything coming from the Collins estate or the litigation in Marshall County, and that she would have exactly the same share from that as he would get, if anything at all came from it.

Appellee further alleges that no consideration was given for said instrument other than the sum of $ 500, the amount of the bequest made to her in the will of her mother, Mary A. Jenkins; that it was not the intent and purpose of any of said parties thereto that said instrument should cover any property to be received from the estate of Araminta Collins, deceased, or as a result of litigation in Marshall County in relation to her affairs. She asks that said instrument be reformed, and that it be decreed to be a receipt for the $ 500 bequest, and for such [201 Iowa 426] other and further relief as to the court may seem just in the premises.

This being primarily an action to require the executor to account, and to remove him, it is necessarily a probate action, and a probate...

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