Kreamer v. Wendel

• Decision Date: 01 July 1927
• Docket Number: 38525
• Parties: MINNIE BELLE KREAMER et al., Appellants, v. ALVERN S. WENDEL et al., Appellees
• Court: Iowa Supreme Court

214 N.W. 712

204 Iowa 20

MINNIE BELLE KREAMER et al., Appellants, v. ALVERN S. WENDEL et al., Appellees

No. 38525

Supreme Court of Iowa, Des Moines

July 1, 1927

Appeal from Woodbury District Court.--A. O. WAKEFIELD Judge.

Action in equity by the widow and minor devisees of a testator, to vacate and set aside an agreement and stipulation affecting the interests of said minors under the will of said decedent. The court dismissed the plaintiffs' petition.

Affirmed.

Kindig Stewart & Hatfield and John J. Hess, for appellants.

Farr Brackney & Farr, for Alvern S. Wendel, Loretta C. Wendel, and Alvern S. Wendel, Executor, appellees.

Snyder Gleysteen, Purdy & Harper, for Capitola M. Barr and G. E. Barr, appellees.

FAVILLE, J. EVANS, C. J., and STEVENS, DE GRAFF, VERMILION, ALBERT, and MORLING, JJ., concur. KINDIG, J., takes no part.

OPINION

FAVILLE, J.

The testator, one A. S. Wendel, died on or about the 28th day of November, 1920. He had been twice married. His first wife was deceased. He left surviving him his widow and two minor children, Forrest Woodrow Wendel and Mildred Darleen Wendel, appellants herein. They are respectively 5 and 3 years of age. He also left surviving him two adult children, Alvern S. Wendel and Capitola M. Barr, who were children of his first marriage. The widow has since remarried. By proper proceedings, one Lewis was duly appointed guardian of the property of the said minors. The will of the testator was offered for probate in the district court of Woodbury County, Iowa, by the said minors, through their guardian, as proponents. The said Alvern S. Wendel filed objections to the admission of said will to probate. It appears of record that, after many negotiations between the adult devisees under said will and the guardian of said minors, a stipulation of settlement and compromise was entered into between said parties. The instant case is an attack upon the said stipulation and an attempt to have the same vacated and set aside. Items 3 and 4 of the will of the testator are as follows:

"Item 3. I will to my wife, Minnie Belle, mother of Forest Woodrow Wendel and Mildred Darleen Wendel, the use during her lifetime of the southwest quarter (SW1/4), and the west half (W1/2) of the northwest quarter (NW1/4) of Section eleven (11), Township eighty-six (86), Range forty-three (43), Woodbury County, Iowa, and also the use during her lifetime of three hundred forty-seven acres of land in Section seven (7), and eighteen (18), Township eighty-nine (89), Range forty-six (46), Woodbury County, Iowa, being land purchased by me of William Bartelt; she to pay taxes on the said land above mentioned and also to care for, support and educate the said children.

"Item 4. Upon the death of the said Minnie Belle Wendel, the said property distributed in Item 3 hereof shall be the property of my two children, namely Forrest Woodrow Wendel and Mildred Darleen Wendel, in equal shares, and in the case of the death of either of them, then the survivor shall take all of the said land, but in case both of them shall die before the death of their mother, then upon her death, the said land described in Item 3 hereof, shall go to my son, Alvern S. Wendel, his heirs and devisees, as he may direct by will."

Item 7 of said will is as follows:

"All the rest and residue of my estate of every kind and character, whether real, personal or mixed, I will and bequeath to my son, Alvern S. Wendel, with the provision that from the said estate so willed to him, all of my debts and bequests shall be paid, he shall also pay the incumbrances, if any, on the land in Section eleven (11), Oto Township, and the land in Section seven (7) and eighteen (18), Concord Township, within a reasonable time after my decease; he shall also pay the mortgage or incumbrances, if any, on the land in Section four (4), in Oto Township, the use of which goes to my daughter, Capitola, and to my son-in-law, G. E. Barr, so that they will have the use of the land without paying interest or any incumbrance. However, he shall have a reasonable time in which to pay the incumbrances on the above described tracts of land, and has the privilege of renewing any loans on the same, but the same shall be cleared within a reasonable time without his sacrificing any part of my estate to pay off the incumbrance."

The stipulation and agreement of settlement was entered into on the 4th day of June, 1921, and it recites the fact of the death of the said testator and the leaving of said will, and that said will had been offered for probate and objections had been filed therto, and contains further recitals as to the property left by said decedent and the value thereof; and by its terms it is stipulated and agreed that the contest upon said will was to be withdrawn, and the said will offered for probate by all of the parties to the stipulation. In lieu of the provisions of the will, it was stipulated that the two minors should have immediate possession of and fee-simple title to a certain farm belonging to the estate known as the Bartelt farm, which is described in Item 3 of said will. They were to take said farm subject to a mortgage then outstanding against the premises in the sum of $ 22,000. It was also stipulated that the widow was to take the farm known as the Stone farm, subject to a mortgage against the same in the sum of $ 7,500. The stipulation provided that, in lieu of the payment and satisfaction of said mortgages by the residuary devisee, Alvern S. Wendel, as provided under Item 7 of said will, the said minors and said widow should have the immediate possession of and fee-simple title to the tract of about 170 acres known as the Lepper land. It is unnecessary that we set out in minute detail the terms and provisions of the stipulation. They differ in material respects from the devises to the widow and to said minors under the terms and provisions of the will. Said stipulation and agreement of settlement was signed by all the adult devisees under said will and by the guardian of the said two minors, and duly filed in said probate proceedings, and thereupon an order was entered by the court admitting said will to probate. Thereafter, an application for an order confirming said stipulation and agreement was filed in said probate proceeding, the same being joined in by all of said parties, including said guardian, and an order was entered providing that the said stipulation was in all respects approved and confirmed by the court.--Subsequently, in the guardianship proceeding, the guardian filed an "application of guardian for approval of settlement of interest in the estate of A. S. Wendel," in which he set out the said stipulation and attached a copy thereof, and asked approval of the said stipulation and agreement; and an order was entered by the court approving said stipulation and agreement and directing the guardian to perform and carry out the provisions of same, in so far as they relate to the interests of the said wards. No notice of the application for approval of the stipulation in the matter of the estate of the testator was served upon the minors, and no guardian ad litem was appointed for them in said matter. In the guardianship proceeding, no notice of the filing of the application of the guardian for approval of the settlement and stipulation was served upon the minors, and no guardian ad litem was appointed for them in connection with the said application for approval. Subsequently, the guardian filed his final report and resignation as guardian, and in said final report he makes, by reference, as a part of said report all the papers and stipulations on file in the estate of A. S. Wendel, deceased, and also the files and papers in the guardianship matter, and recites that he conducted the negotiations for the settlement in behalf of his wards, and prays that he may be discharged. The court entered an order fixing the time for hearing upon said final report, and directing notice to be given to said minors; and due notice of said hearing was had upon said minors, and thereafter a guardian ad litem was duly appointed, who appeared and filed answer in their behalf. The court entered an order on said final report, finding that due service of notice of the hearing upon said final report had been had upon said minors, and a guardian ad litem duly appointed therefor, who had filed answer; and ordered that said final report be approved and said guardian discharged. All parties acted upon said stipulation of settlement and proceeded thereunder as to said properties.

I. We first consider the question as to the power of the guardian of the minors to enter into a stipulation of compromise which materially affected the interests of said minors. It must be conceded that, under the terms and provisions of the stipulation, the rights of the minors in the property of the testator were materially changed from that which was devised to them under the terms and conditions of the will. There is no question whatever of bad faith or fraud in connection with said matter. We must and do hold, under the record, that the guardian acted in good faith, and for what he believed to be for the best interests of his wards, in effecting said settlement. Whether the said stipulation of settlement was more beneficial to the wards than the terms and provisions of the will is a matter which we do not need to determine in this case. The settlement and stipulation was made in good faith, and was approved by the court, and there is no such showing of prejudice to the rights of the minors as to indicate fraud or bad faith.

It is contended by the appellants that, under the terms of said will, the minor devisees were vested with certain rights in the...