In re Karr's Estate

• Decision Date: 12 December 1944
• Docket Number: 46606.
• Citation: 16 N.W.2d 634,235 Iowa 351
• Parties: In re KARR'S ESTATE. KARR et al. v. KARR et al. (SIMPSON et al., Resistants).
• Court: Iowa Supreme Court

16 N.W.2d 634

235 Iowa 351

In re KARR'S ESTATE.

KARR et al. v. KARR et al. (SIMPSON et al., Resistants).

No. 46606.

Supreme Court of Iowa

December 12, 1944

Lane & Waterman, of Davenport, and C. D Marshall, of Rock Island, Ill., for appellants.

Talbott & Talbott, of Brooklyn, and H. E. DeReus, of Knoxville for appellees.

BLISS Justice.

The deceased Joseph Karr, 78, of Brooklyn, Poweshiek County, Iowa, died there April 16, 1943. He had never married. His older brother, Ira, also a bachelor, seven years his senior, a resident of Rock Island, Ill., died in 1932. His eldest sister, Rebecca (Karr) Simpson, died in the latter part of 1928. Her only survivor when Joseph died was her son Elmer E Simpson, one of the resistants. The other sister of Joseph, also his senior, was Mary (Karr) Humphrey, who preceded him in death some years, leaving as her only survivors when Joseph died, her children, William Humphrey, Ira Humphrey, Olive Humphrey, Ruth Humphrey, and the following children of deceased daughters, towit: Stella Mae Frenzel, Dorothy Marie Butterfield, Edgar Leroy Benway, Grace Olive Prentice, Ruth Elizabeth Penley, and Adolph Duvivier. These children, and grandchildren, comprise the remaining resistants. The only other surviving heir of the deceased Joseph is his brother, William K. Karr, three years his junior, who is one of the three plaintiffs-appellees. The other two are Thomas Karr and Marjorie Smith, children of William K. Karr. Adella Karr and Katherine Schoonover wife and daughter, respectively, of William K. Karr, are among the defendants.

On April 29, 1943, William K. Karr, on his own petition, was appointed, and qualified as administrator of the intestate estate of Joseph Karr. On August 7, 1943, he filed his preliminary inheritance tax report, inventory of property, list of heirs--the survivors of decedent's deceased sisters noted above, and himself--and under the heading, 'Beneficiaries Under Contract,' he listed himself and his three children, named above. No real estate was listed. The inventory showed cash in the bank of $4077.93, about 5000 shares of stock of a market value of $127,150.24 and bonds of a market value of $14,224.20, making the total value of the estate $145,452.37.

On September 11, 1943, the claim of the plaintiffs, verified by Wm. K. Karr, against himself as administrator, was filed. It alleged that: He and the deceased came to Brooklyn in 1889 and for 54 years operated a drygoods store until Joseph's death, under the name of 'Karr Bros.,' and during the first 40 years their brother Ira was an inactive partner; in 1894 William married and for 49 years Joseph lived in the home and with the family of William and his wife, Adella; 'during the period of time from the date of the death of Ira Karr in 1932 to July 31, 1940, an arrangement, compact and understanding was made and reached between Joseph and William whereby it was mutually agreed: (a) that Joseph would devise and bequeath $5000 to Thomas Karr, $5000 to Katherine Schoonover, $5000 to Marjorie Smith, and the balance of his estate to William; and (b) that William would devise and bequeath $5000 to Thomas Karr, $5000 to Katherine Schoonover, $5000 to Marjorie Smith, $200 to each of his grandchildren, and the balance of his estate of Adella Karr, his wife'; in 1937, under said mutual contract, Joseph and William each advanced to Marjorie Smith one half of $5500 to purchase her a home; after July 31, 1940, and preceding the death of Joseph, $10,000 was given to Katherine Schoonover to purchase a home as an advancement or ademption 'under said existing mutual contract, etc.'; the estate of deceased consists entirely of personal property and is of a gross value of about $140,000; 'under and in connection with said mutual arrangement, compact, understanding and contract, without the aid of legal counsel or assistance Joseph in ink and in his own handwriting wrote on two sheets of paper. That Exhibit 'A', attached hereto and by this reference made a part hereof, is a copy of one of said sheets of paper * * *. That on or about the 31st day of July, 1940, said paper (Ex. 'A'), and the other said sheet of paper, (Ex. 'B'), entirely in the ink handwriting of Joseph Karr having blank spaces for the name of the executor, and for the signer were submitted to William by Joseph and after considering the same William K. Karr wrote the words 'Joseph Karr' in the blank space for the name of the executor, and the words 'Wm. K. Karr' in the blank for the signer, * * * the said instruments (Exhibits 'A' and 'B'), are testamentary in character and were executed under and in connection with said mutual arrangement, compact and understanding between Joseph and William, but the instrument, Ex. 'A' does not meet all the formal requirements of section 11,852 of the Code and by reason thereof it is not admissible to probate as the last will and testament of Joseph Karr, deceased. That by reason of said facts, Joseph Karr failed to validly devise and bequeath his property in accordance with said mutual arrangement, compact and contract and Thomas Karr has been materially damaged in the sum of $5000, Marjorie Smith has been materially damaged in the sum of $2250, and William Karr has been materially damaged in an amount equal to the balance of the estate of decedent, which is alleged to have and be of the value of $130,000,' for which respective amounts the said persons hold claims against the estate and property of the deceased and ask allowance thereof.

The instrument Ex. 'A,' referred to in the claim, is as follows:

'I, Joseph Karr now residing at Brooklyn County of Poweshiek and State of Iowa being of sound mind & memory do hereby make publish and declare this to (be) my last will and testament hereby revoking any and all former wills by me at any time made.

'First. I direct that all just debts and funeral expenses shall be paid by executor, hereinafter named as soon as same can be conveniently done

'Second. I give, devise and bequeath to my brother William K. Karr all of my estate except the following

'A. I give devise and bequeath to my nephew Thomas Karr now residing at Carrizozo--New Mexico the sum of Five Thousand dollars--34 1/3-34

'B. I give devise and bequeath to my niece Katherine Schoonover now residing at Route 2 Baileys-Cross Roads Alexandria Virginia the sum of Five Thousand dollars (5000.00) 34

'C. I give devise and bequeath to my niece Marjorie Smith now residing at 2815-46th St. Des Moines Iowa the sum of sum of Twenty two hundred fifty dollars 31,250 She previously has--received--Twenty Twenty seven hundred & fifty dollars--1/3 less 2750----'

The instrument is just as set out above. It is written in ink except the figures following paragraphs A and B and the two sentences in paragraph C, which are in lead pencil. It bears no signature.

The instrument, Ex. 'B,' referred to in the claim is as follows:

'I, William K Karr now residing at Brooklyn county of Poweshiek and state of Iowa--being of sound mind & memory do hereby make--Publish and declare this to be my last will and testament hereby revoking any and all former wills by me at any time made----

'First--I direct that just debts and funeral expenses shall be paid by my executer herein after named as soon as same can be conveniently done

'Second--I give devise and bequeath to my wife Adella Karr as followeth my residence and all the household contents the storeroom building on Jackson St Brooklyn Iowa My one half interest in Karr Bros Dry Goods Store accounts and etc. in Brooklyn Iowa

'Also the balance of my estate after the following bequests Vis--(A-B-C)

'A. I give devise & bequeath to my son Thomas Karr now residing in Carrizozo--New Mexico--The sum of Five Thousand dollars

'B. I give devise & bequeath to my daughter Katherine Schoonover now residing at Route 2 Baileys Cross Roads Alexandria Virginia the sum of ($5000.00) Five thousand dollars----

'C. I give devise & bequeath to my daughter Marjorie Smith now residing at 2815-46th Des Moines Iowa the sum of Twenty two hundred fifty dollars--She having had ($2750) previous

'D. I give devise & bequeath to each of my grandchildren the sum of Two hundred dollars----

'Third--I hereby nominate and appoint Joseph Karr now residing at Brooklyn Iowa to be executor of this my last will and testament and request that he be permitted to act as said executor without bond

'In witness whereof I here onto set my hand and seal this 31st day of July A D-1940 at Brooklyn Iowa Poweshiek Co.

'Wm. K. Karr.'

(Italics are ours.)

On September 11, 1943, U. M. Reed, attorney of Brooklyn, Iowa, was appointed temporary administrator to pass on plaintiffs' claim, after notice given to all heirs of Joseph Karr. The notice was given, but the record does not disclose that the temporary administrator ever passed upon the claim.

On September 18, 1943, Adella Karr filed petition to probate 'the now discovered will of Joseph Karr.' This will was admitted to probate on October 5, 1943, and on October 9th William K. Karr was appointed and qualified as administrator with the will annexed of the estate of deceased. And on the same day the claim of plaintiffs was refiled.

This will of Joseph Karr, duly executed and witnessed, on May 26, 1928, gave and bequeathed his property as follows: To his brother, Ira, $35,000; to his brother William K. Karr, $35,000; to his sister Rebecca Simpson, $3,000; to his sister Mary Humphrey, $5,000; to his niece, Elizabeth Duvivier, $2,000; to his nephew, Thomas Karr, his niece, Katherine Karr, his niece, Marjorie Karr, and his sister-in-law Della Karr, all of Poweshiek County, Iowa, each $10,000. The testator's brother, Ira Karr, was nominated executor without bond.

On November 13, 1943, the heirs of the...