Logan's Estate, In re

• Decision Date: 12 June 1962
• Docket Number: No. 50572,50572
• Citation: 253 Iowa 1211,115 N.W.2d 701
• Parties: In the Matter of the ESTATE of Meryl E. LOGAN, Deceased. Clyde E. LOGAN, Executor, Appellant, v. Glen TOYNE and Clara Fern Crane, Appellees.
• Court: Iowa Supreme Court

Page 701

115 N.W.2d 701

253 Iowa 1211

In the Matter of the ESTATE of Meryl E. LOGAN, Deceased.

Clyde E. LOGAN, Executor, Appellant, v. Glen TOYNE and Clara Fern Crane, Appellees.

No. 50572.

Supreme Court of Iowa.

June 12, 1962.

Dwight G. McCarty, Emmetsburg, for appellant.

Dale P. Carpenter, Coon Rapids, and M. R. Tan Creti, Carroll, for appellees.

THORNTON, Justice.

This is an action in probate, tried to the court in equity, seeking the construction of the joint will of Clyde E. Logan and Meryl E. Logan. Meryl E. Logan is deceased. Clyde E. Logan survives.

Some time prior to 1944 Clyde E. Logan married Mrs. Meryl Toyne, the mother of three children by a previous marriage. For convenience and brevity they will be referred to as Clyde and Meryl. Meryl had some property from her former marriage.

Apparently they were industrious and thrifty. In 1944 they acquired a fractional 160-acre farm, taking title thereto in the names of Clyde E. Logan and Meryl E. Logan, husband and wife as joint tenants, and not as tenants in common.

On July 24, 1956, Mr. and Mrs. Logan, after consultation with and directions to their attorney, executed a joint will in words and figures as follows:

'We, the undersigned, Clyde E. Logan and Meryl E. Logan, of Coon Rapids, Greene County, Iowa, being of sound mind and each being possessed of interests in certain property which we have mutually agreed and do hereby mutually agree each in consideration of the promise and act of the other to dispose of such property in the manner hereinafter set forth, do hereby make, publish and declare the following as our joint and several wills.

'ITEM I

'Clyde Logan, subject to the payment of his just debts and funeral expenses, hereby gives, devises and bequeaths to Meryl E. Logan all of the property of every kind or nature, real, personal, or mixed, of which he may die seized or possessed or to which he may be entitled, if the said Meryl E. Logan survives him. Meryl E. Logan, subject to the payment of her just debts and furneral expenses, hereby gives, devised and bequeaths to Clyde E. Logan all of the property of every kind or nature, real, personal or mixed, of which she may die seized or possessed or to which she may be entitled, if the said Clyde Logan survives her.

'ITEM II

'Subject to the bequest in ITEM I, Clyde E. Logan and Meryl E. Logan, upon the death of the survivor of them, gives, devises and bequeaths the remainder of all of the property as follows:

'A. $100.00 to the children of William Logan, late of Corydon, Iowa.

'B. $100.00 to Claire E. Logan, Lawton, Oklahoma.

'C. $100.00 to Bertha Bailey, Trenton, Missouri.

'D. All the rest, residue and remainder of our joint estates we give devise and bequeath to Gilbert Toyne, Breda, Iowa; Glen Toyne, Coon Rapids, Iowa; and Clara Fern Crane, 7114 NE Blair Road, Vancouver, Washington.

'/s/ Clyde E. Logan

'/s/ Meryl E. Logan

'We, the testators herein, hereby nominate and appoint the survivor of us as executor of this, our joint Last Will and Testament; and in the event both of us are unable to act or are deceased, we nominate and appoint Glen Toyne, Coon Rapids, Iowa, executor of this, our joint Last Will and Testament; and we hereby exonerate them from giving bond as such.

'Dated at Carroll, Iowa, this 24th day of July, 1956.

'/s/ Clyde E. Logan

'/s/ Meryl E. Logan'

The instrument was duly witnessed.

The will was drawn by the attorney with knowledge that the real estate holdings were held jointly and with instructions that the will should follow the pattern of a joint tenancy.

In February, 1958, the Logans acquired a 40-acre tract of land, taking title thereto in the names of Clyde E. Logan and Meryl E. Logan as joint tenants with full right of survivorship, and not as tenants in common.

Meryl died on August 3, 1959, a resident of Greene County, and on September 8, 1959, the will was admitted to probate as her last will and testament. Clyde E. Logan, the nominee in the will, was appointed as executor without bond.

Notice to creditors was published, preliminary inheritance tax report and probate inventory was filed listing the names of the beneficiaries as named in the will, scheduling no real estate as the property of the decedent and scheduling the real estate as joint property.

During the lifetime of Meryl and as far as appears from the record continuing thereafter, friendly relationship prevailed between Clyde and the three stepchildren.

Clyde E. Logan has now remarried.

Uncertainty as to the nature of his interest in the property impaired Clyde's credit and made difficult the financing of his farming operations.

The only property listed in the probate proceedings are the two parcels of real estate held in joint tenancy, a checking account in the sum of $18, a government bond with a current value of $30 issued to Meryl E. Logan POD Clyde E. Logan, and an interest in a stock certificate in Greene County National Farm Loan Association with a value of $437.50.

Clyde E. Logan, as executor and one of the devisees under the will, asks that he be decreed to be the owner in fee simple and that Item II of the will be declared void for repugnancy. The residuary beneficiaries and devisees ask that they be declared to be vested remaindermen and that the interests of Clyde E. Logan be declared to be only that of a life tenant without power of alienation.

The trial court propounded and determined two basic questions: (1) Is this a joint and mutual will as defined by the law? and (2) Is there a repugnancy?

The real estate involved was held in joint tenancy with a right of survivorship, and if the only purpose in making the will was to provide for a fee simple title in the survivor, there was no reason for the will. Our problem is not the determination of what property passed by the will, but whether or not there was a valid and binding contract controlling the disposition of the property by the survivor.

I. The trial court held that the will was joint and mutual. We agree. The distinction between joint, reciprocal and mutual wills is pointed out in the recent case of Father Flanagan's Boys' Home v. Turpin, 252 Iowa 603, 106 N.W.2d 637. A joint will is a single testamentary instrument constituting the wills of two or more persons, jointly executed. The term refers to form rather than substance. Reciprocal wills are those in which two or more testators make testamentary dispositions in favor of each other. Reciprocal wills may contain bequests to third persons. Wills, even though joint or reciprocal, are not necessarily established as mutual by being joint or reciprocal. We quote, beginning at page 603 of 252 Iowa, page 640 of 106 N.W.2d:

'* * * A will is 'joint' if it is the will of two or more persons in one instrument; 'reciprocal' if it contains reciprocal gifts or property among two or more makers; but it is 'mutual' in Iowa only if it is executed pursuant to an agreement. We quote from 97 C.J.S. Wills § 1364, p. 287: 'Under other authorities, the term 'mutual,' so far as it relates to wills, appears to be applied and confined by the courts to wills which are executed in pursuance of a compact or agreement between two or more persons to dispose of their property, either to each other or to third persons, in a particular mode or manner, each in consideration of the other.' Cited in support of this proposition are Luthy v. Seaburn, 242 Iowa 184, 46 N.W.2d 44, and Maloney v. Rose, 224 Iowa 1071, 277 N.W. 572. We agree with the statement quoted. The term 'mutual' is properly applied to wills only when there is evidence sufficient to show a binding agreement as to disposal of the property of the makers in a certain way. If there is not such evidence, the wills may be reciprocal, but they are not mutual.'

A greater quantum of proof than the mere execution of the wills is necessary to establish the wills as contractual. There must be substantial evidence. The proof may be by extrinsic evidence or it...