Luthy v. Seaburn

• Decision Date: 06 February 1951
• Docket Number: No. 47773,47773
• Citation: 242 Iowa 184,46 N.W.2d 44
• Parties: LUTHY et al. v. SEABURN et ux.
• Court: Iowa Supreme Court

Page 44

46 N.W.2d 44

242 Iowa 184

LUTHY et al. v. SEABURN et ux.

No. 47773.

Supreme Court of Iowa.

Feb. 6, 1951.

C. W. Elson, of Corydon, and W. B. Hays, of Centerville, for appellants.

Elton A. Johnston, of Corydon, for appellees.

OLIVER, Justice.

Mary J. Logue died in 1947 survived by her husband H. D. Logue. The only real estate she owned was the dwelling in which they lived. Her will, executed February 12, 1937, gave her husband a life estate in this real estate and the household goods and equipment therein, remainder to her nephew, defendant Harry Seaburn. The will gave all her other property (personalty) to her husband absolutely.

Upon the admission of her will to probate H. D. Logue filed his election therein, stating he refused to take under the will and elected to take his distributive share of one third of the property as her surviving spouse. Later he brought this action against Harry Seaburn and wife to establish his asserted one third interest in the real estate and to partition it. Defendants pleaded Mrs. Logue's will was made pursuant to a contract between the husband and wife whereby they agreed to and did make mutual wills and that Mr. Logue should be required to conform to its provisions.

Mr. Logue died before the case was tried and his sole heirs at law, Florence Z. Luthy and Callie Ruth Schurman, were substituted as plaintiffs. Trial resulted in judgment, establishing the contract and that the mutual wills were made in accordance therewith, adjudicating this was a relinquishment of the right of dower and any right or interest of Mr. Logue in the property, other than the life estate willed to him which had terminated at his death, finding the fee title thereafter was in defendant Harry Seaburn, absolutely, and dismissing plaintiffs' action. Plaintiffs have appealed.

I. The only evidence offered by plaintiffs concerning the transactions between Mr. and Mrs. Logue relative to their mutual will was the deposition of Mr. Logue. Defendants objected on the ground the witness was incompetent, under section 622.4, Code of Iowa of 1950, I.C.A., to testify to personal transactions and communications with his deceased wife. This statute makes a party to an action or one interested in the event thereof an incompetent witness as to personal transactions and communications with a person since deceased, against the devisee of such deceased person. Plaintiffs contend Harry Seaburn may not invoke the statute because he claims the property, not as a devisee under the will of Mrs. Logue but under an alleged agreement for his benefit. The record does not support this contention. Although he pleaded the wills were made pursuant to the agreement, Harry Seaburn claimed his rights were fixed and determined according to the terms of the (mutual) will of Mrs. Logue which devised the real estate to Harry subject to a life estate in Mr. Logue. Child v. Smith, 225 Iowa 1205, 1214, 282 N.W. 316. As such deviseehe was a member of a class protected by section 622.4 and Mr. Logue was incompetent to testify against him to Mr. Logue's personal transactions and communications with Mrs. Logue.

II. E. E. Poston, the lawyer who drew the two instruments, testified for defendants, in part, substantially as follows:

He was called to the home of the Logues to advise them concerning their estate and to draw wills for both of them. Mr. and Mrs. Logue together told him they wanted to will their property to each other. He explained to them this could be done by a joint will or by separate mutual wills, which he considered preferable, and which would be contractual in nature. 'They said that was all right. They understood it.' Mrs. Logue said she would will Mr. Logue all her property, except the residence and household goods which would go to Harry Seaburn, and Mr. Logue expressed satisfaction with this, saying he was not interested in the household goods or real estate. The two instruments were at that time drawn in conformity with the agreement of Mr. and Mrs. Logue and were signed and witnessed. They were taken by Mr. Poston and kept in his safe. A few days later (February 12, 1937) Mrs. Logue called at Mr. Poston's office and stated Mr. Logue had asked her to change her will to give him the life use of the residence and household furniture in addition to the other property which he was to receive absolutely. She said Mr. Logue was not well and couldn't come with her and they didn't want to ask Mr. Poston to again come to their home. To accomplish the requested enlargement of benefits to Mr. Logue, the will here in controversy was that day drawn by Mr. Poston, executed by Mrs. Logue and left in the possession of Mr. Poston. Her earlier will was then destroyed. About three days later Mr. Logue called at Mr. Poston's office, asked to see this later will of Mrs. Logue, examined it and said it was exactly what they had talked about and was all right. Mr. Logue's will remained in the possession of Mr. Poston until after the death of Mrs. Logue when it was returned to Mr. Logue.

Plaintiffs objected to the interrogation of Attorney Poston on the ground that, under the dead man statute, section 622.4, Code of Iowa 1950, I.C.A., he was incompetent to testify to the personal transactions with the deceased Mrs. Logue. Mr. Poston's only connection with the transactions was as attorney for both parties. We have held the interest of an attorney is not sufficient to disqualify him as a witness under this section. In re Will of Kenney, 213 Iowa 360, 363, 239 N.W. 44, 78 A.L.R. 1189. In re Estate of Rehard, 163 Iowa 310, 312, 313, 143 N.W. 1106; In re Estate of Farley, 237 Iowa 1069, 1079, 24 N.W.2d 453.

Another ground of the objections was that the communications were privileged under Code section 622.10, I.C.A. which forbids the disclosure by an attorney of communications made him in professional confidence. However, the privilege does not apply where, as here, two or more persons consult an attorney for their mutual benefit. Stewart v. Todd, 190 Iowa 283, 288, 173 N.W. 619, 180 N.W. 146, 20 A.L.R. 1272; Benson v. Custer, 236 Iowa 345, 351, 17 N.W.2d 889; Lewis v. Beh, 206 Iowa 281, 284, 218 N.W. 944, 220 N.W. 126; 70 C.J. 410, Witnesses, section 551(6). Hence, neither of the two foregoing objections was valid.

The trial court found the facts were as testified to by Mr. Poston. A study of the record satisfies us these findings are correct. Hence, several contentions of plaintiffs which are based upon the testimony of Mr. Logue, need not be considered.

III. Mutual wills have been defined 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. Maurer v. Johansson, 223 Iowa 1102, 1105, 274 N.W. 99; Maloney v. Rose, 224 Iowa 1071, 1074, 277 N.W. 572. We pointed out in Anderson v. Anderson, 181 Iowa 578, 585, 164 N.W. 1042, 1044, that the two instruments constitute a single will which is the will of the first to die and when that part of the will is probated, the other part has no further existence as the will of the survivor, except when the mutual character of the will covers only part of the survivor's estate and in the same instrument the survivor includes a devise to third persons, to that extent the survivor's will is an individual will and to that extent may be carried out.

Mr. Poston testified to the prior agreement of Mr. and Mrs. Logue to dispose of their property in a particular manner and to execute wills accordingly. The wills, containing the reciprocal provisions agreed to by Mr. and Mrs. Logue were drawn and executed at substantially the same time, with the knowledge and at the joint request of Mr. and Mrs. Logue. The wills and the evidence of the circumstances attending their execution clearly prove there was a prior agreement to make mutual wills. Maurer v. Johansson, 223 Iowa 1102, 1107, 274 N.W. 99; In re Estate of Farley, 237 Iowa 1069, 1077, 24 N.W.2d 453. We agree with the finding and conclusion of the trial court that the proofs established the wills were mutual. Maloney v. Rose, supra, 224, Iowa 1071, 1074, 277 N.W. 572; Anderson v. Anderson, 181 Iowa 578, 164 N.W. 1042; Child v. Smith, 225 Iowa 1205, 282 N.W. 316; Chambers v. Porter, 183 N.W. 431, 434, (not reported in Iowa Reports); 24 Iowa Law Rev. Bar Association Section, pages 15, 20 et seq.

IV. Plaintiffs contend the contract for mutual wills was prohibited by Code section 597.2, I.C.A. which provides one spouse has no interest in the property of the other which can be made the subject of contract between them. We do not agree with this...