Lindsey's Estate, In re

• Citation: 254 Iowa 699,118 N.W.2d 598
• Decision Date: 11 December 1962
• Docket Number: No. 50788,50788
• Parties: In the Matter of the ESTATE of C. C. LINDSEY, Deceased. Clarence LINDSEY, Claude Lindsey, Harvey Lindsey, Alma Holbrook, Mavis Bishop, Rose O. Olson and Berniece Nielson, Appellees and Cross-Appellants, v. Lee LINDSEY, Leo Lindsey and Dorothy Lindsey Hardy, Appellants.
• Court: United States State Supreme Court of Iowa

Page 598

118 N.W.2d 598

254 Iowa 699

In the Matter of the ESTATE of C. C. LINDSEY, Deceased.

Clarence LINDSEY, Claude Lindsey, Harvey Lindsey, Alma Holbrook, Mavis Bishop, Rose O. Olson and Berniece Nielson, Appellees and Cross-Appellants, v. Lee LINDSEY, Leo Lindsey and Dorothy Lindsey Hardy, Appellants.

No. 50788.

Supreme Court of Iowa.

Dec. 11, 1962.

Rehearing Denied Jan. 14, 1963.

Cornwall, Cornwall & Avery, Spencer, and Whitney, Whitney & Stern, Storm Lake, for appellants.

Alan Loth, Fort Dodge, for appellees and cross-appellants.

MOORE, Justice.

This case involves the estate of C. C. Lindsey, who died May 12, 1961, leaving a last will and testament, dated April 26, 1951, wherein he devised and bequeathed his property to his daughter Dorothy and his twin sons, Leo and Lee, with provision Dorothy was to pay his daughter Rose Marie $1000.00. His remaining six children, Claude, Clarence, Alma, Harvey, Mavis and Berniece, were specifically disinherited. On May 16, 1961, the three devisees filed the will and offered it for probate. On June 15 and by amendment August 31 the other seven children filed resistance to the probate of the will and made application for administration. They alleged an oral agreement had been entered into that the father's will would not be probated, the property would be treated as though he died intestate, and his ten children would share equally in it, except what might be used for his care during his lifetime. They claimed the agreement was made with Claude and Clarence on behalf of and for the benefit of all applicants. They claimed their part of the agreement had been performed. The three proponents filed answer denying the making of any oral agreement and claiming such an agreement would be invalid and unenforceable by reason of the statute of frauds. By stipulation the case was tried as in equity, with agreement the seven brothers and sisters should have no greater burden of proof than at law. The trial court held the evidence established an oral agreement for division of real property of about 400 acres in Pocahontas County and held the personal property belonged to the survivors named therein. The court held the validity of the will was not in issue, denied it to probate and appointed a special administrator.

Dorothy, Leo and Lee are appellants and claim (1) the evidence does not support the court's findings there was an oral agreement to divide the real estate, (2) evidence of such an oral agreement is barred by the statute of frauds, and (3) the court erred in denying the will to probate.

The other seven children are appellees. They have cross-appealed claiming personal property should have been ordered divided under the oral agreement.

Decedent and his wife were divorced in 1940. The three appellants remained with him. The seven appellees went with their mother and never had anything to do with their father thereafter. There were really two families. The children in the two families were like strangers until 1955 when Leo and Lee exchanged some farm work with Claude. When Leo returned from military service he immediately left his father's home and took a nearby house. Lee after military service returned to live with his father and Dorothy until October 1956 when he went to live alone. Leo and Lee moved because of difficulty with their father. A few days before Christmas 1956 the father attacked Dorothy. She escaped through a window with only the clothing she was wearing. Dorothy, Leo and Lee then discussed what action should be taken as the father was a sick man, unmarried, and unable to care for himself. They knew the provisions of his will and were afraid their father might disinherit them. The three met with Claude in his home that night and again the next morning. The events which occurred at Claude's home and thereafter can best be determined from the evidence of the witnesses.

Claude testified regarding his first talk with Dorothy and the twins at his house shortly before Christmas 1956. He stated Dorothy said her father had threatened her life, she had crawled out a window to get away and the twins and she were afraid of their father. That they felt something should be done with the father and asked for his help. They told him the provisions of the father's will, stated it wasn't fair and asked him to go with them to see his attorney, Fred Gilchrist, about proceedings to have the father committed to an institution. The next morning Dorothy and the twins returned. They said if he would help them they felt the father's property should be divided between the ten children. They felt if they went ahead the father would be mad and disinherit them and for that reason they wanted him to help them.

Claude said that on December 24 he went to Gilchrist's office with Dorothy, Leo and Lee and gave the details of the conversation had by the parties with Attorney Gilchrist. That conversation will be set out hereinafter as related by Gilchrist.

Claude stated thereafter he went with Dorothy to see Alma, Mavis and Clarence. Dorothy explained to each of them the agreement that if help was given to take care of their father all should share equally in the estate at time of the father's death. That subsequent thereto Dorothy, Leo, Lee, Clarence and he visited Attorney Gilchrist where another extended conversation took place, the details of which will be set out in the testimony of Gilchrist.

He said an information against the father for a sanity commission hearing was later signed by Dorothy, Leo, Lee and himself and at the hearing all of the children were present except Rose Marie and Berniece, at which time a conversation took place in the presence of the brothers and sisters, the details of which will be set out hereinafter in the testimony of Attorney Donald Beneke. That he acted as guardian, together with Mr. Beneke, of the property of his father until the father's death.

Part of the testimony of Mrs. Claude Lindsey set out in narrative form from the record as approved by counsel and certified by the court is:

'Until the things we are talking about here our family had nothing to do with his father or the twins. One night the twins brought Dorothy over to our house but I had already gone to bed, and I stayed there. Dorothy didn't stay with us that night. She came again next morning with the twins. They all had a talk with Claude while I was there. They said they were quite upset. They wanted their father taken care of and wondered if Claude would go with them and see what they could do to have him taken care of. They felt they needed the family as a group to help, and if the family as a group could go and help them take care of their father, that after he was no longer living, however he left his property, it would be divided amongst the ten children. Dorothy is the one who outlined that plan. All four of them were together. Neither of the twins said, 'We don't want to do that.' Lee said it was the fair way. Leo says, 'I can only answer for my tenth.'

'Dorothy stayed at our house that night and until about the first of April, all the rest of the winter. This was the first time Dorothy had been to see us. The twins had been coming off and on most of the past year, either to visit or set up chicken cages or to work.

'When Dorothy said the things I have told about, Claude said yes, he would help take care of his father, and agreed that was the proper way; that the estate should be used to take care of his father as long as he lived and that the fair way was that it should be divided.

'All four of them left our house together to go to Gilchrist's office.'

Part of the testimony of Attorney Fred Gilchrist in narrative from from the record is:

'I recall December 24th when Claude and his two brothers and his sister, Dorothy, came to my office. They informed me--I don't recall whether it was Claude or Dorothy, but one or both of them informed me that their father had reached a stage where it was necessary that he be taken before the Sanity Commission. Dorothy said she had come to Claude for help because the situation was such with her father that if she, Lee and Leo would file information against their father, naturally he wouldn't like it and it would probably estrange their father from them. In any event he would contest the insanity. That Dorothy, Lee and Leo had informed Claude that if the other children and Claude would assist them in having their father committed and would sign the necessary papers, that they had agreed with Claude that, no matter what their father may have done with reference to disposing of his property before his death, they would upon the father's death divide the property equally between all ten children. They asked me the procedure before the Commission. I informed them an information must be filed in the clerk's office and advised them it was best to contact the county attorney and the clerk to arrange for the information and they could then sign it. I asked them who Mr. Lindsey's physician was. They said Dr. Gannon. I said we better talk with him about Mr. Lindsey's mental condition. So Claude and I did go to Dr. Gannon's office and discussed the matter with him there. No actual papers were made on December 24th.

'I believe it was the day after Christmas that I came to Pocahontas with Claude to discuss it with the county attorney. I believe there was another conference with Lee, Leo, Dorothy, Claude and Clarence on the morning of the 27th. The thing was discussed again. We had arranged by that time to have the hearing the next day. While they were all together in the office, this agreement was discussed again with Clarence. As I recall, it was Dorothy who did most of the talking and explained what the arrangement was to Clarence. She said about the same thing she had said a couple of days before; that they had to do something with the father, it was impossible to care for him on the farm; he would have to be committed. That she'd...