Latcham v. Latcham

• Decision Date: 13 February 1923
• Docket Number: 34689
• Citation: 191 N.W. 977,195 Iowa 221
• Parties: M. M. LATCHAM, Appellant, v. CARL E. LATCHAM et al., Appellees
• Court: Iowa Supreme Court

191 N.W. 977

195 Iowa 221

M. M. LATCHAM, Appellant, v. CARL E. LATCHAM et al., Appellees

No. 34689

Supreme Court of Iowa, Des Moines

February 13, 1923

Appeal from Poweshiek District Court.--H. F. WAGNER, Judge.

ACTION against executors of the estate of one Latcham, to establish a claim on a promissory note. Claimant is the wife of decedent. On a hearing, the trial court disallowed the claim and claimant appeals.

Affirmed.

Frank Bechly and U. M. Reed, for appellant.

R. J Smith and Devitt & Eichhorn, for appellees.

FAVILLE J. PRESTON, C. J., EVANS and ARTHUR, JJ., concur.

OPINION

FAVILLE, J.

The decedent died September 23, 1920. It appears from the record that he had been married three times. The claimant was his third wife, and had been married to the decedent about twelve years. There were no children by this marriage, but the decedent had children by his former marriages. On August 17, 1920, he executed and delivered to the claimant the note in suit. It is a nonnegotiable instrument, the material part thereof being as follows:

"On the day of 191 for value received, we promise to pay M. M. Latcham my wife or order the sum of two thousand, when estate is settled, dollars with interest at the rate of 5 per cent per annum, payable annually."

Appellees pleaded that the note was without consideration.

Upon the trial of the case, the appellant offered in evidence the note in question, proved the genuineness of the signature thereto, and rested. The decedent's two sons were witnesses for the appellees. They testified that, after the death of the decedent, they had a conversation with the claimant in regard to said note, in which conversation the appellant stated, in effect, that the decedent "gave" her the note in question "because he thought she ought to have something out of his estate," which was all to go to his children. No evidence was offered in rebuttal. The trial court held that the note was without consideration, and was intended as a gift by the deceased to his wife, and was not enforceable against the estate.

I. The appellant contends that the note, being a written instrument, imports a consideration, and that appellant is entitled to recover thereon without other proof than that of the genuineness of the signature of the maker. Code Section 3069 provides:

"All contracts in writing, signed by the party to be bound or by his agent or attorney, shall import a consideration. "

The appellant established the genuineness of the signature of the maker to the note in question, and offered no other proof. Appellant contends that the case at bar is governed by our holding in the case In re Estate of Rule, 178 Iowa 184, 159 N.W. 699. In that case, the widow of decedent filed a claim against his estate, based upon promissory notes made by the decedent, payable to the claimant. The notes were drawn by a sister of the claimant's, who was a competent witness, and who testified that, at the time of signing the same, the decedent stated that "he wanted to protect her in what he owed her. He said he owed her the amount stated in the notes." The defendants offered no evidence in said case. We held that, in this situation, there was an affirmative showing that the notes evidenced an enforceable contract between the husband and wife, and said:

"But even if we were to go to the extent of defendants' contention that, before the claims could be allowed, there must be a showing that the making of the notes grew out of transactions having reference to the wife's separate estate, the record is still sufficient to sustain the ruling of which defendants complain. It is shown without dispute that, in making and delivering the note, he was attempting to protect...