In re Johnson's Estate
| Decision Date | 27 July 1943 |
| Docket Number | 46270. |
| Citation | 10 N.W.2d 664,233 Iowa 782 |
| Parties | In re JOHNSON'S ESTATE. |
| Court | Iowa Supreme Court |
Allan S. Jackson, of Chicago, Ill., Frank D. Riley of Clarion, and D. M. Kelleher, of Fort Dodge, for appellants.
V P. McManus, of Manson, and A. C. R. Swenson, of Omaha, Neb for appellees.
George E Johnson and his sister Emma, both then unmarried, lived together in Manson, Iowa. Emma Johnson died in October, 1932. In the summer of that year Mrs. Hilda Wahlstrom became housekeeper for the Johnsons. She continued in this service after the death of Emma Johnson. On January 14, 1933, George Johnson married Mrs. Wahlstrom in Chicago. Two days previously he became acquainted with the two sons of Mrs. Wahlstrom, appellant. Thore Wahlstrom, 26 years of age, and appellant Axel Wahlstrom, 23 years of age, both of whom lived in Chicago.
Mr. and Mrs. Johnson returned to Manson January 15, 1933. January 17th they called upon a lawyer and instructed him to make a joint will which would leave the property of each to the survivor and ultimately, upon the death of both, to Mrs. Johnson's two sons. They said, "They had just figured this thing out how they wanted it-they had agreed in private how they wanted to deal with the property." George Johnson said "they had gone into and agreed how they were going to leave this property." They discussed their properties with the lawyer. Mrs. Johnson's only property was certain household goods, most of which had been brought to Manson from Chicago in a trunk. Mr. Johnson owned a 160-acre farm, about $13,000 in mortgages and the home in Manson, then worth about $1,500. He had acquired his property by inheritance from his father and by deed from his sister. The lawyer immediately prepared the will. It was examined by and explained to the Johnsons, was executed by George Johnson and Hilda Johnson, was witnessed in due form and was turned over to George Johnson.
The instrument is entitled, "Joint Will and Testament of George E. Johnson and Hilda Theresia Johnson." It provides, in part:
The Johnsons lived together in Manson until the death of Mrs. Johnson, June 26, 1938. There was no issue from the marriage. During this period improvements were made upon the home and certain household goods were purchased. Apparently their income consisted of the rent or earnings of the farm and interest upon the mortgages held by Mr. Johnson. Separate bank accounts were carried in Manson State Bank. The account of Mrs. Johnson was not large and the record indicates the funds deposited were furnished by Mr. Johnson.
Immediately after the death of Mrs. Johnson in June, 1938, her two sons came to Manson from Chicago. One of them brought a check for $125 which his mother had drawn to him and sent him two days before her death. Mr. Johnson took $35 of this money and the sons took $90 which they used to purchase a marker for Mrs. Johnson's grave. This left only $1.50 in Mrs. Johnson's bank account. Mr. Johnson later drew this. The only remaining estate of Mrs. Johnson was personal effects and household goods valued by some witnesses at approximately $50. The expenses of the burial of Mrs. Johnson, amounting to $350 and the expenses of her last illness in a like amount, were paid by Mr. Johnson.
One of Mrs. Johnson's sons testified that after they returned to Chicago he discovered the joint will of Mr. and Mrs. Johnson in a bundle of photographs and papers which had been turned over to the sons by Mr. Johnson. The sons retained possession of the joint will. It was not offered for probate and no proceedings to probate the estate of Mrs. Johnson were instituted.
July 25, 1938, George Johnson executed another will in due form. That will provided his entire estate should pass to the survivors of eight cousins on his father's side, all of whom were residents of Sweden. George Johnson died March 13, 1941. March 15, 1941, Thore and Axel Wahlstrom offered the joint will for probate. March 17, 1941, the 1938 will of George Johnson was offered for probate in the same proceedings. The proponents of each will filed objections to the probate of the other. Thore and Axel Wahlstrom also pled the joint will was a contract which George Johnson was without power to revoke after the death of his wife. They prayed specific performance of said contract and that all the property be impressed with a trust for their benefit. Their right thereto was challenged and is the principal issue in the case.
George Johnson left an estate of approximately $30,000, consisting of the 160-acre farm, valued at $16,000, the house, then worth $2,500, household goods of an estimated value of $500, and about $11,000 in mortgages, bank deposits, etc. The mortgages, bank deposits and credits due him were somewhat less in amount than in 1933. There is no indication that any substantial debts were owed by him.
By stipulation all the issues were consolidated and the cause was tried as an action in equity. Judge Hutchison, before whom the trial was had, died shortly thereafter and the cause was submitted to Judge Snell upon the transcript.
The briefs of the parties cite the Iowa cases and various decisions of other courts involving joint and mutual wills, executed in most instances by a husband and wife. We quote from an excellent general discussion of the Iowa cases (to that time) at pages 15 to 24, Iowa Bar Association Section of Vol. 24, Iowa Law Review, (Nov. 1938):
As supporting the foregoing definitions and propositions see Baker v. Syfritt, 147 Iowa 49, 125 N.W. 998; Campbell v. Dunkelberger, 172 Iowa 385, 153 N.W. 56; Child v. Smith, 225 Iowa 1205, 282 N.W. 316; Anderson v. Anderson, 181 Iowa 578, 164 N.W. 1042; and citations in said decisions. See also 4 Iowa Law Bulletin 189; McCarty Iowa Probate, Section 367, Annotations in 43 A.L.R. 1020, 102 A.L.R. 491.
The instrument executed by George and Hilda Johnson in 1933 purports to be a joint and mutual will. Anderson v. Anderson, supra, 181 Iowa at page 584, 164 N.W. at page 1044, states: "In a joint or mutual will for the benefit of the survivor, there is an element which partakes of the nature of contractual obligation. *** if there be no revocation before the death of one of the parties, the right of the survivor is thereby fixed and determined according to the terms of the mutual will."
Child v. Smith, supra, 225 Iowa at page 1214, 282 N.W. at page 321, adds to the foregoing statement: "And where, as in the instant case, provision is made for third parties, the rights of such third parties are equally thereby fixed and determined according to the terms of the mutual will."
It is stated in Baker v. Syfritt, supra, 147 Iowa at page 56, 125 N.W. at page 1001: "It is sometimes said that a will is essentially ambulatory, and subject to revocation at the desire of testator at all times until rights thereunder have become vested by death; and, while this is true as a general proposition, it is equally true that, where the will has been made pursuant to a valid contract, the testator cannot by the act of revocation escape the obligations of his contract, nor will his heirs take any advantage by such revocation."
Our decisions agree that it is the contractual element which distinguishes mutual wills from other wills. Furthermore, it is the established rule in this state that the will (or wills) itself...
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