Johansen v. Davenport Bank & Trust Co.

• Decision Date: 06 February 1951
• Docket Number: No. 47795,47795
• Citation: 242 Iowa 172,46 N.W.2d 48
• Parties: JOHANSEN v. DAVENPORT BANK & TRUST CO.
• Court: Iowa Supreme Court

Page 48

46 N.W.2d 48

242 Iowa 172

JOHANSEN v. DAVENPORT BANK & TRUST CO.

No. 47795.

Supreme Court of Iowa.

Feb. 6, 1951.

Cook, Blair & Balluff, of Davenport, for appellant.

Harold F. Thuenen, of Davenport, for appellee.

GARFIELD, Justice.

This action is in equity by a surviving husband for specific performance of a claimed oral contract by which he and his wife agreed to leave all his or her property to the survivor. The principal question is whether the pleaded contract has been proven. The trial court held not. We reach the same conclusion.

Plaintiff has the burden to prove the oral contract relied upon by clear and satisfactory evidence. Campbell v. Dunkelberger, 172 Iowa 385, 389, 153 N.W. 56; Maurer v. Johansson, 223 Iowa 1102, 1106, 274 N.W. 99; Child v. Smith, 225 Iowa 1205, 1215, 1219, 282 N.W. 316; DeJong v. Huyser, 233 Iowa 1315, 1320, 11 N.W.2d 566, 569; Anno. 169 A.L.R. 9, 65. See also Freeseman v. Henrichs, 233 Iowa 27, 28, 6 N.W.2d 138, 139.

Plaintiff Henry P. Johansen married Agnes Bendixen in 1904. Neither had been married before. They lived in Davenport till the wife died December 20, 1948. They had no children. On February 2, 1924, plaintiff executed a will leaving all his property, subject to payment of debts, to his wife and appointed her executrix. On May 22, 1924, 110 days later, Agnes executed her will leaving all her property, subject to payment of debts, to her husband (plaintiff) and appointing him executor.

Just above testatrix' signature on Agnes' will and in the attestation clause, 'February' had been typed as the month of its execution but had been stricken out with ink and 'May' written in ink above it. Both wills were witnessed by Walter M. Balluff, a Davenport attorney who died before the trial. Plaintiff's will was also witnessed by two stenographers then employed by Mr. Balluff's firm, and Agnes' will by a third employee of the firm.

On September 13, 1944, Agnes made a will revoking her 1924 will and providing a life estate for plaintiff in substantially all her property with remainder to a niece and nephew. The niece was nominated executrix. Plaintiff contends the making of the 1944 will, which was admitted to probate (with defendant bank appointed administrator c. t. a.), was a breach of the claimed oral contract he says led to the making of the 1924 wills. Plaintiff elected to refuse to take under the 1944 will and to take his statutory distributive share.

Plaintiff (born 1879) started work for a Davenport clothing store about 1900, acquired an interest in it about 1920 and nearly complete ownership about 1924 when it was worth approximately $50,000. Beginning in 1933 the business suffered financially and closed in 1940. Plaintiff says he paid the family expenses until 1940. After that his wife paid such expenses from what she had obtained from her father who died in 1935 and her brother who died in 1942. There is evidence Agnes started paying such expenses in 1935. All property left by Agnes, worth about $40,000, she acquired from her father and brother. There is undisputed evidence plaintiff was absent from home, drank to excess and was not kind to Agnes for several years before she died.

I. Subject to defendant's objection that plaintiff was an incompetent witness under section 622.4, Codes 1946, 1950, I.C.A., the dead man statute, plaintiff tesitified that early in 1924 he and his wife discussed the matter of wills, consulted attorney Walter Balluff regarding them in January, 1924, advised Mr. Balluff what they desired, both had the idea of making a will giving the survivor all the property, the two wills incorporate an understanding he had with some one and that he had no such understanding with any one other that his deceased wife. This last testimony regarding plaintiff's understanding was objected to, and properly so, as an opinion and conclusion in addition to the objection to the witness' competency.

We are clear defendant's objection to the competency of the witness was good. So far as applicable here section 622.4 provides that no party to an action shall testify to a personal transaction or communication between him and a person deceased, against the administrator of such deceased person. Among decisions which support our conclusion are Luthy and Schurman v. Seaburn, Iowa 1951, 45 N.W.2d 44; O'Dell v. O'Dell, 238 Iowa 434, 448, 26 N.W.2d 401, 408; Maasdam v. Estate of Maasdam, 237 Iowa 877, 893, 24 N.W.2d 316, 324; Wells v. Wildin, 224 Iowa 913, 921, 227 N.W. 308, 115 A.L.R. 169, 175, 176; Black v. Nichols, 213 Iowa 976, 240 N.W. 261; Sheldon v. Thornburg, 153 Iowa 622, 626, 627, 133 N.W. 1076.

II. We find no competent evidence of the claimed oral contract aside from the 1924 wills themselves. Plaintiff contends these wills sufficiently establish a specifically enforceable contract between him and his deceased wife for the devise and bequest to him of all her property. The contention is that the 1924 wills, without more, show they are mutual wills, i.e., executed pursuant to an agreement or compact between plaintiff and his wife to dispose of their property in the particular manner provided by the wills, each in consideration of the other. For the definition of mutual wills usually found in our opinions see Luthy and Schurman v. Seaburn, supra, Iowa, 45 N.W.2d 44, and citations; In re Estate of Johnson, 233 Iowa 782, 786, 10 N.W.2d 664, 667, 148 A.L.R. 748, 753, and citations.

After a careful review of all our decisions on the subject of mutual wills in the light of the authorities generally we are unable to sustain plaintiff's contention.

While we have never departed from the rule that clear and satisfactory proof is required of an oral contract to make a particular will where specific performance thereof is sought after the death of one party to the claimed contract, we have held it unnecessary that wills contain a memorandum of agreement for mutual wills or by their language show they are the result of a contract or that the contrat be established by direct oral evidence.

Under our decisions of existence of such a contract may be established by the wills and the surrounding circumstances where it is shown they are the wills of husband and wife, each acting with the knowledge of the other, the wills are executed at substantially the same time, at their joint request, and contain reciprocal provisions. Under such a state of facts we have held the wills and the evidence of the circumstances attending their execution clearly prove there was a prior agreement to make wills. Maurer v. Johansson, supra, 223 Iowa 1102, 1107, 274 N.W. 99, and citations; Luthy and Schurman v. Seaburn, supra, Iowa, 45 N.W.2d 44.

Here it appears only that the 1924 wills are those of husband and wife and contain reciprocal provisions. There is no competent evidence that each maker acted with the knowledge of the other or that the wills were made at their joint request. There is no competent evidence Agnes was present when plaintiff executed his will nor that plaintiff was present when Agnes executed her will. Nor does it appear that either knew the contents of the other's will. Possibly it appears by inference (from the fact 'February' had been...