Levis v. Hammond

• Decision Date: 12 January 1960
• Docket Number: No. 49740,49740
• Parties: Howard H. REVIS, Appellant, v. E. J. HAMMOND, Clara Hammond, and E. J. Hammond, Executor of Estate of Dave Flum, Deceased, Appellees.
• Court: Iowa Supreme Court

Page 638

100 N.W.2d 638

251 Iowa 567

Howard H. REVIS, Appellant, v. E. J. HAMMOND, Clara Hammond, and E. J. Hammond, Executor of Estate of Dave Flum, Deceased, Appellees.

No. 49740.

Supreme Court of Iowa.

Jan. 12, 1960.

Rehearing Denied March 11, 1960.

A. V. Hass, Chariton, for appellant.

Johnston & Miles, Corydon, for appellees.

GARFIELD, Justice.

This is a suit in equity by Howard H. Levis for specific performance of an alleged oral agreement between Dave Flum and his predeceased wife Maud to make mutual wills in which plaintiff, a nephew of Maud, was to be beneficiary, subject to the life estate of the surviving maker. Following trial to the court, relief was denied and plaintiff has appealed. One ground of the trial court's decision is that it would be inequitable to award specific performance.

August 26, 1939, the alleged mutual wills were prepared by E. E. Poston, then an attorney at Corydon, and executed by Mr. and Mrs. Flum. So far as material Dave's will provided: '1. I give * * * Maud Flum all of the property of which I may die seized * * * for and during her lifetime, * * * with the right at any time she chooses to sell any or all part of said property * * * for her own use, comfort and support.

'2. And at the death of my said wife any balance that remains unused I will and bequeath to my nephew, Harland Howard Levis * * *.'

Maud's will was identical with Dave's except for transposition of the two names. Maud died May 7, 1945. On September 4, 1945, Dave went to Mr. Poston's office and said he wanted to draw up another will, that he was having some trouble with plaintiff, they hadn't been getting along very well, he was going to stay with defendants and wanted to give them his property. Mr. Poston then prepared and Dave executed a new will leaving his property to defendants E. J. Hammond and wife 'upon the express condition that they * * * provide a home for me should I become sick or at any time I ask them to * * *.'

After Dave and E. J. Hammond were born to prior marriages Dave's mother married Hammond's father. The Flums, who were married in 1901, left no children or other direct heirs. Dave made his home with defendants from October 24, 1945, until he died May 9, 1957. His second will was admitted to probate before this suit was commenced October 30, 1957.

Aside from the terms of the first wills the principal evidence on which plaintiff relies to show they were mutual is this of Mr. Poston: 'They came in for the purpose of making a will or will(s), talking generally of what was going to become of their property and what they wanted to do with it * * *. I think the question came up that Maud said she owned part of the property and they agreed then they ought to both have wills. She at that time said--or earlier or later, I am not sure--* * * she had inherited some money from her father's estate and had put it into this property and it was decided then to draw a will for each of them. * * *

'I explained to them * * * how these wills would control their property and it was in the nature--I don't now recall what words I used, of course, but told them these wills were in the nature of an agreement and it would control their property no matter what they decided to do later. * * * Yes, they were both well satisfied with that kind of disposition of their property.

'Q. Did both of them tell you on that occasion they wanted it to go to Howard Levis? A. Yes, that was their idea. * * * They didn't issue any instructions but the wills were drawn in accordance with their wishes. * * * It was my custom to read it aloud and I presume I read it aloud to them or gave it to them and they read it. I don't remember which * * *.'

Regarding Dave's visit to Mr. Poston's office to have the second will drawn in September, 1945, the attorney testified he informed him the previous will 'might give you trouble' but Dave replied, in substance, he didn't care. After the second will was executed Mr. Poston gave Dave the earlier one and did not see it again.

Plaintiff's two propositions for reversal are (1) that the first wills constituted a contractual disposition of the property of both and (2) Dave could not deprive plaintiff of his rights under them by the testamentary disposition contrary to the contractual arrangement between Dave and his wife.

I. We have usually defined mutual wills as those executed pursuant to an agreement or compact between two or more persons to dispose of their property in a particular manner, each in consideration of the other. In re Estate of Johnson, 233 Iowa 782, 786, 10 N.W.2d 664, 667, 148 A.L.R. 748, 753, and citations; Luthy v. Seaburn, 242 Iowa 184, 188, 46 N.W.2d 44, 46, and citations; Barron v. Pigman, 250 Iowa ----, 95 N.W.2d 726, 729.

Proof of an oral agreement to make mutual wills must be clear and satisfactory. Johansen v. Davenport Bank & Trust Co., 242 Iowa 172, 173, 46 N.W.2d 48, 49, and citations; In re Estate of Lenders, 247 Iowa 1205, 1213, 78 N.W.2d 536, 541, and citations. We have also said the proof must be clear, satisfactory and convincing. In re Estate of Ramthun, 249 Iowa 790, 799, 89 N.W.2d 337, 342.

While we have never departed from the rule that clear and satisfactory proof is required of such an agreement 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 such a contract or that the contract be established by direct evidence. Under several earlier decisions the existence of such an agreement might be established by the wills and the surrounding circumstances where it was shown reciprocal wills were those of husband and wife, each acting with the knowledge of the other and the wills were executed at substantially the same time at their joint request. Johansen and Lenders cases, cited last above, and precedents there cited; Allinson v. Horn, 249 Iowa 1351, 1356, 92 N.W.2d 645, 648, and citations.

The Lenders opinion, supra, points out, however, that according to the great weight of authority there must be other evidence than that just referred to of a contract to make mutual wills (at page 1214 of 247 Iowa, at page 541 of 78 N.W.2d). To like effect are In re Estate of Ramthun, supra, 249 Iowa 790, 801-802, 89 N.W.2d 337, 344, also Allinson v. Horn, supra, which states: 'In recent decisions we have modified the theory that simultaneous execution of reciprocal wills alone creates an inference of the existence of a contract or agreement. We have held that a greater quantum of proof than the execution of the wills is necessary to establish such contract. (citations)' (at page 1356 of 249 Iowa, at page 648 of 92 N.W.2d). To the same effect is Barron v. Pigman, supra, 250 Iowa ----, 95 N.W.2d 726, 729. See also Note, 44 Iowa Law Review 523, 531-4.

In addition to simultaneous execution of reciprocal wills here we have Mr. Poston's testimony as to his recollection of what was said at the time, although this was about 19 years before the trial. It must be admitted this is a sufficient showing, even under some of our later decisions, of the existence of an oral agreement to make mutual wills.

II. However, it does not follow that plaintiff is entitled to specific performance of the agreement. The trial court found that at Maud's death she had no property in her name and Dave acquired no benefit from her will. Also that when the first wills were executed and at all times thereafter Dave was the owner of the 159-acre farm and personal property and Maud had nothing upon which her will could operate. The court also found defendants furnished Dave a home, care, support and nursing for more than 11 1/2 years just before he died, plaintiff did nothing for Dave's comfort or support, and it would shock the court's conscience to grant plaintiff specific performance. Although our review is de novo these findings are entitled to weight. Groves v. Groves, 248 Iowa 682, 692, 82 N.W.2d 124, 130, and citations.

We think the conclusion inescapable that when the first wills were made and at all times thereafter Maud had no property that would or did pass under her will. Plaintiff's principal reliance in arguing against the conclusion just stated is upon an inventory in Maud's estate prepared by Mr. Poston, signed and sworn to by Dave as executor on May 12, 1945, which lists the farm and a half interest in the livestock. The inventory was not filed until December 30, 1957, two months after this suit was started. Mr. Poston testified that when he learned the farm was in Dave's name he wanted another session with him before he filed the inventory because he wanted it to be according to the facts. Dave never came back to his office and Mr. Poston never tried to contact him.

That the inventory is false appears beyond fair debate, probably because of some unintentional error in preparing it, not chargeable to Dave. Although Maud's will was admitted to probate and Dave was appointed executor thereof, nothing further was done toward settlement of any estate evidently because there was no estate to settle.

Baker v. Syfritt, 147 Iowa 49, 56, 59, 125 N.W. 998, 1001, seems to be the first Iowa decision involving joint or mutual wills. It has been cited with apparent approval in most of our later pertinent precedents and by many other courts. There is nothing in any of our later opinions in conflict with this language from the Baker opinion: '* * * where one maker of such will dies before a revocation thereof by either, and the survivor accepts any benefit thereunder (italics added), we think it quite clear that he can no longer revoke, and that any attempt by him to divert the common estate in any other direction than is indicated by the common or joint devise is nugatory. The rule as deduced from the authorities by the author of the article on Wills in American and English Encyclopedia of...