In re Swanson's Estate

• Decision Date: 09 March 1948
• Docket Number: 47155.
• Parties: In re SWANSON'S ESTATE.
• Court: Iowa Supreme Court

31 N.W.2d 385

239 Iowa 294

In re SWANSON'S ESTATE.

No. 47155.

Supreme Court of Iowa

March 9, 1948

[Copyrighted Material Omitted]

Leo E. Fitzgibbons, of Estherville, and L. E. Linnan, of Algona for appellants.

F J. Kennedy, of Estherville, and Kelleher & Kelleher, of Fort Dodge, for appellees.

GARFIELD Justice.

Proponents' appeal presents the question whether the settlement agreement is a valid defense to their attempt to probate the will and codicils. On the administrators' appeal we must determine whether an ex parte allowance of fees to proponents' attorneys is a final judgment or decision from which appeal will lie under Rule 331, Rules of Civil Procedure.

Decedent John Swanson died November 18, 1946, leaving a will and two codicils which were filed for probate by the attorney for Lloyd and Ed Stockdale, nominated in the will as executors. It is of no consequence that the petition for probate was signed by the attorney, not by the Stockdales. Such a petition was unnecessary--filing the will and codicils was sufficient. In re Will of Young, 224 Iowa 419, 275 N.W. 558; In re Estate of Hermence, 235 Iowa 745, 751, 15 N.W.2d 905, 908 .

Time for probate was fixed, notice prescribed and given. On November 30 decedent's heirs, a daughter and three sons, and his widow filed a paper designating F. J. Kennedy as attorney to probate the will and settle the estate and discharging Leo Fitzgibbons, who signed the petition for probate. Two days later the Stockdales filed a paper designating Mr. Fitzgibbons as attorney for the executors. On December 18 the widow and heirs filed their written request that the Stockdales decline to act as executors.

On the day set for probate the heirs filed objection to the probate of the will and second codicil on the ground that when that codicil was made decedent 'was not competent to make same.' The Stockdales then filed an application challenging the sufficiency of this objection because it was based solely on decedent's condition when the second codicil was made and asking that in any event the will and first codicil be admitted to probate.

Two days later the widow and heirs filed resistance to the Stockdales' application in which they set up an agreement that day signed by them providing for settlement of the estate as intestate and appointment of the daughter and a son as administrators. They also amended the objection previously filed by the heirs by alleging decedent was of unsound mind and the victim of undue influence of proponents (doubtless meaning the Stockdales) when the will and codicils were made. The Stockdales filed answer to the objections, denying them, and reply to the resistance, challenging the settlement agreement because it does not provide for distribution of the estate in a different manner than the will, is merely a scheme to defeat decedent's choice of executors and for other reasons.

The issues raised by the resistance of the widow and heirs and the reply thereto were heard by the court. The settlement agreement was upheld as a bar to the probate of the will and the daughter and son named in the agreement were appointed administrators to settle the estate as intestate. From this adjudication the Stockdales have appealed to us.

After the above decision but before the appeal, attorneys for the Stockdales made application for the allowance of fees as part of the costs of administration. The order was entered ex parte, allowing Mr. Fitzgibbons $558 and Mr. Linnan (who was employed by the Stockdales soon after the resistance based on the settlement was filed) $250. The son and daughter as administrators have appealed from such allowances.

In considering the appeal of the Stockdales, to whom we refer as appellants--we call the widow and heirs appellees, the terms of the will, made in 1945, and second codicil, as well as the settlement agreement, should be stated. The first codicil may be disregarded. The will makes these bequests: A life estate in all realty to the widow; $500 to each of 13 grandchildren; $3500 to the daughter; half of all personalty, after payment of debts and specific bequests, to the widow; the rest of the personalty and the remainder interest in the realty are bequeathed 3/10 to the daughter, 3/10 to the son John, Jr., 2/10 to each of the other two sons; $100 to a cemetery on condition it agree to appropriate $5 annually for 20 years in the upkeep of the Swanson cemetery lot. The will directs appraisal, upon the appointment of executors, of decedent's interest in a farm partnership with two sons, who may acquire such interest at the appraised value.

The will also directs the cancellation of notes and mortgages made by the son, John, Jr. The second codicil, made in September, 1946, revokes this provision and bequeaths such notes and mortgages to the widow. Except for this change, this codicil confirms the will. At his death decedent held notes and mortgages of John, Jr., in the sum of $14,800 plus several years' interest. The will, as stated, nominates Lloyd and Ed Stockdale as executors.

The agreement upheld by the trial court, signed in January 1947, by the daughter and sons, their spouses and the widow, states it is in settlement of all controversies which have arisen or might arise in connection with the estate, including the widow's right to distributive share and support, to provide for settlement of the estate without administering it as testate and to avoid delay and expense. It recites $6600 has been deposited with the clerk of the district court to pay the bequests of $500 each to the 13 grandchildren and $100 to the cemetery. The provisions of the will are renounced and the court is asked to provide for settlement of the estate as intestate in accordance with the agreement and not under the will and codicils and to appoint John, Jr., and the daughter Mabel administrators.

The agreement provides for distribution in this manner: $3500 to Mabel; notes and mortgages made by John Jr., shall be canceled and surrendered to him (this is in accord with the provision of the will but contrary to the second codicil which bequeaths these notes and mortgages to the widow); after payment of debts and costs of administration half the personalty shall go to the widow, the remaining half to the daughter and sons in the same proportions as provided in the will; the widow shall have a life estate in the realty with remainder to the daughter and sons in the same proportions provided by the will.

The agreement further provides the farm partnership between decedent and two sons which existed in 1945 has been mutually dissolved before decedent's death and all matters of accounting settled except for the period from June to October 10, 1946. As to such period, John, Jr., and Mabel, as administrators, are authorized to settle with the surviving partners. The agreement recites it does not limit the powers of the court to make all orders usual in administration of intestate estates or in the enforcement of claims of creditors.

Upon the trial appellees assumed the burden of proving the execution of the settlement agreement and deposit of $6600 with the clerk to satisfy the legacies to the grandchildren and the cemetery. Appellants do not now question either of these facts. Appellants examined the widow and daughter apparently in an attempt to show the purpose of the agreement was to prevent appellants from acting as executors. That this was an important consideration in making the agreement there is little doubt.

There was trouble and ill feeling between at least two of the sons and one or perhaps both of the Stockdales. The nature of the trouble or who was more to blame therefor does not appear. The daughter insisted there would be no peace in the family if appellants acted as executors and the mother testified she wanted the estate settled in peace. The only other testimony at the trial was that of John, Jr., offered by appellees, as to the notes and mortgages he was owing decedent.

I. Except in Wisconsin where such an agreement is not recognized, as against public policy, it is generally held the beneficiaries under a will may agree to disregard the instrument and have the estate distributed as intestate or in any other manner they see proper. In re Estate of Murphy, 217 Iowa 1291, 252 N.W. 523; In re Estate of Stone, 132 Iowa 136, 109 N.W. 455, 10 Ann.Cas. 1033; In re Dale's Estate, 139 Neb. 631, 298 N.W. 414; Annotation 97 A.L.R. 468; Note Ann.Cas.1918E 1218; 69 C.J., Wills, sections 2673, 2674; 28 R.C.L., Wills, section 359. See also Bosserman v. Watson, 230 Iowa 627, 630, 298 N.W. 804, 806.

Like other courts, we have not followed the Wisconsin rule which is based on the theory a will is more sacred than a contract and it is the duty of courts to carry out the wishes of the testator regardless of the wishes of beneficiaries. In re Estate of Murphy, supra; Annotation 97 A.L.R. 468, 470, 471; Note Ann.Cas.1918E 1218, 1223, 1224.

It is sometimes said family settlements are favored by courts. Harris v. Randolph, 213 Iowa 772, 783, 236 N.W. 51; 69 C.J., Wills, section 2673. In upholding such settlements, courts have reasoned that beneficiaries under a will may, immediately after the distribution, divide the property as they see fit and there is no reason why they may not make such division before they receive the property. Also that beneficiaries are not compelled to accept provisions of the will. Annotation 97 A.L.R. 468, 470. See also Coomes v. Finegan, 233 Iowa 448, 451, 7 N.W.2d 729, 730, and citations.

Appellants contend a family settlement is upheld only where it provides for distribution in a manner different than in the will and it is said the agreement here makes no such provision. It is true it is usually stated in substance that a...