Lawrence v. Ashba

• Decision Date: 05 March 1945
• Docket Number: 17309.
• Citation: 59 N.E.2d 568,115 Ind.App. 485
• Parties: LAWRENCE et al. v. ASHBA et al.
• Court: Indiana Appellate Court

59 N.E.2d 568

115 Ind.App. 485

LAWRENCE et al. v. ASHBA et al.

No. 17309.

Appellate Court of Indiana, in Banc.

March 5, 1945

Appeal from Miami Circuit Court; David E. Rhodes, Special Judge.

Action by John J. Ashba and others against William T. Lawrence individually and as executor of the last will of Sarah E Lawrence, deceased, and Iva B. Lawrence for specific performance of a contract, for an accounting, to set aside a conveyance of real estate, and for a judgment declaring a trust and for the appointment of a trustee. Judgment for plaintiffs, defendants' motion for new trial was overruled, and defendants appeal.

Affirmed.

Joseph A. Noel, of Kokomo, Hurd J. Hurst, of Peru, and McClure & Shenk, of Kokomo, for appellants.

A H. Cole and H. K. Cuthbertson, both of Peru, for appellees.

DRAPER Chief Judge.

The appellees, who are the three sons by her first marriage of Sarah E. Lawrence, deceased, brought this action against the appellants William T. Lawrence, individually and as executor of the last will and testament of Sarah E. Lawrence deceased, and Iva B. Lawrence, for the specific performance of a contract; for an accounting; to set aside the conveyance of real estate and for a judgment declaring a trust and for the appointment of a trustee.

The court found for the appellees, ordered an accounting, vacated and set aside the conveyances hereinafter mentioned and ordered that all property, both real, personal and mixed possessed by the appellant William T. Lawrence and Sarah E. Lawrence at the time of her death be impressed with a trust in favor of the appellees, subject only to the right of the appellant William T. Lawrence to the enjoyment of the rents and net profits thereof and therefrom realized; and appointed a trustee to marshall and take charge and possession of all said property, to preserve the corpus thereof and collect the rents and profits, and make disposition of said property and the rents and profits thereof under the equitable powers and the supervision and direction of the court, retaining jurisdiction of the cause for the purpose of the accounting and administration of the trust.

The appellants filed their motions for new trial asserting (1) that the decision of the court is not sustained by sufficient evidence, and (2) that the decision of the court is contrary to law. They assert error in the overruling of those motions.

It appears that the father of the appellees died in 1905 and in 1907 their mother married the appellant William T. Lawrence, who never had any children. In 1942 Mrs. Lawrence died. On July 1, 1937, Mr. and Mrs. Lawrence held some real estate by the entireties which they had been able to acquire largely as the result of her industry and thrift and a pension received by her because of the fact that the father of appellees was a civil war veteran. On that day they each made a will. Items II and III of the will of Mrs. Lawrence read as follows:

'Item II. I will, bequeath and devise all my property, both personal and real, to my husband William T. Lawrence, absolutely and in fee simple.

'Item III. In the event my husband, William T. Lawrence should predecease me, I then will, bequeath and devise all my property, both personal and real, to John J. Ashba, James A. Ashba and Charles R. Ashba, share and share alike.'

The same clauses, but substituting the name of Sarah Lawrence for that of William T. Lawrence, appeared in the will of William T. Lawrence. There was no other difference in the wills except that his will included a direction to the executor to purchase a marker for their graves. In both wills James A. Ashba was nominated as executor.

After making these wills they disposed of the real estate then held by them and acquired other real estate, taking title thereto by the entireties, and that real estate was so held when she died, and is the real estate involved in this case.

A few hours after her death William T. Lawrence, alone and unaccompanied by anyone, emptied their safety deposit box and by inference it appears he took therefrom cash and other personal property of considerable value, all of which he still retains. On October 13, 1942, her will was probated and he was appointed executor.

He married again on September 20, 1942, and eight days later made and caused to be made, conveyances intended to vest title to the real estate in his then wife, the appellant Iva B. Lawrence, said conveyances being intended to prevent appellees from ever acquiring the properties. Thereafter Mr. Lawrence stated to others that he had everything fixed and the boys wouldn't get a cent. There is no contention that Iva B. Lawrence furnished any consideration for the conveyances to her, or that she took without notice.

A will is generally ambulatory until the death of the testator, and mutual and reciprocal wills, unless founded on or embodying a binding contract, may be revoked at pleasure. 69 C.J. 1299, § 2719.

The burden of proving that mutual and reciprocal wills were made pursuant to a valid and enforceable contract is upon those who assert such to be true, and the evidence thereof must be full and satisfactory. Edson v. Parsons, 1898, 155 N.Y. 555, 50 N.E. 265. Indeed, the rule requires the agreement to be established by evidence clear, definite, convincing, unequivocal and satisfactory, and to be valid and enforceable the contract must be fair and just, definite and certain in its terms and as to the subject matter, and based upon a sufficient consideration. Plemmons v. Pemberton, 1940, 346 Mo. 45, 139 S.W.2d 910; 69 C.J. p. 1300, § 2722.

The mere fact that the wills under consideration contain identical provisions and that they were drawn by the same scrivener, executed at the same time and before the same witnesses, with full knowledge on the part of each testator of the contents of both wills, and were clearly made for the accomplishment of a common purpose, is not sufficient evidence of a contract to make wills to remain unrevoked at the deaths of the testators, although such circumstances are to be regarded as some evidence that they were made pursuant to an agreement. But where the contract does not appear in the language of the wills, and so the wills, unaided, are not sufficient to show the contract, the agreement may be proven by the testimony of witnesses who know the facts, by...