Maloney v. Rose

• Decision Date: 08 February 1938
• Docket Number: 43969.
• Parties: MALONEY et al. v. ROSE et al.
• Court: Iowa Supreme Court

277 N.W. 572

224 Iowa 1071

MALONEY et al. v. ROSE et al.

No. 43969.

Supreme Court of Iowa.

February 8, 1938

Appeal from District Court, Greene County; M. E. Hutchison, Judge.

Appeal from judgment and decree establishing separate wills as the mutual wills of the testators.

Affirmed.

Jerome E. Whalen, of Jefferson, for appellants.

Sayers & Hutcheon and E. G. Albert, all of Jefferson, for appellees.

STIGER, Chief Justice.

On March 6, 1907, James W. Huntington and Ella K. Huntington husband and wife, executed separate wills, each testator devising all his property to the other. At the time the wills were executed, Mr. Huntington was 62 years of age, Mrs Huntington was 50 years old, and there were no surviving children or grandchildren. Each owned separate property. Mr Huntington was the first to die. His estate was fully administered and closed, all his property being bequeathed and devised to his wife. Mrs. Huntington passed away in November, 1933, and her will was duly admitted to probate. The executor of her estate filed his final report in which he made the following allegations: " The will of Ella K. Huntington, deceased, devising absolutely, all of the property of every nature of which she died seized to her husband, James W. Huntington, was a mutual and reciprocal will, executed pursuant to an agreement between the testatrix and her husband by which the property of the one first to die should go to the survivor of them and that Ella K. Huntington, having survived her husband, James W. Huntington, her estate descends as intestate property to her heirs-at-law. That her will being the expired portion of mutual and reciprocal wills was ineffective, upon the death of her husband and the probate of his will, to pass title to her property."

The heirs of James W. Huntington filed objections to the final report alleging that they were entitled to all the property disposed of by the will of Ella K. Huntington as the heirs of James W. Huntington, sole devisee under her will. The objectors then moved that the matter of the objections to the final report based on the construction of the will be transferred to equity. Thereafter, plaintiffs, heirs at law of Ella K. Huntington, filed a petition to construe the will of Ella K. Huntington and determine succession to the property. The petition alleged that the said wills were prepared by the same attorney, executed at the same time, and witnessed by the same persons; that they were executed pursuant to a mutual understanding and agreement that the survivor should acquire title to all the property of either testator and that, by reason thereof, the will of Ella K. Huntington was inoperative at the time of her death and that the property belonging to her estate descended to her heirs as intestate property. The defendants, heirs at law of James W. Huntington, filed an answer and cross-petition. The answer alleged that, the will of Ella K. Huntington having been duly admitted to probate, the judgment admitting the will to probate was a binding adjudication on the plaintiffs not only as to the due execution of the will but as to the proper disposition of the property disposed of, and that the plaintiffs cannot attack the judgment collaterally by the proceeding to construe the will. The answer further stated that the plaintiffs were estopped by their conduct from maintaining the action because they acquiesced in the judgment admitting the will of Mrs. Huntington to probate and by acquiescing in the administration of the estate as a valid testate disposition thereof and cannot now collaterally attack the validity of the will or assert that it is not a valid testamentary disposition of her estate. The answer also alleged that the will of Mrs. Huntington was her separate will and especially denied that the wills were mutual in character, and stated that the alleged contract or compact for mutual wills violated Code section 10447 of the 1931 Code.

The cross-petition stated that the will of Ella K. Huntington devised and bequeathed all of her property to James W. Huntington, and, the devisee having died before the testator, the defendants as his heirs were entitled to the property under the anti-lapse statute, Code, § 11861.

A decree was entered in which it was determined that the instruments constituted mutual and reciprocal wills and decreed that upon the death of James W. Huntington the will of Ella K. Huntington became inoperative and that her property descended and should be distributed in the same manner as though she had died intestate. The defendants, heirs of James W. Huntington, appealed.

Mr. Huntington devised all of his property to his wife, naming her as executrix, and Mrs. Huntington devised all of her property to her husband, naming him as executor. The wills were signed and executed at the same time in the presence of the same witnesses, contained reciprocal provisions, each testator acting with knowledge of the other. The witnesses to the wills were R. G. Howard and A. D. Howard, who were associated in the practice of law at Jefferson. At the time of the trial, A. D. Howard was deceased. Mr. R. G. Howard testified that Mr. Huntington came to see his brother, A. D. Howard, about a will and that a will was prepared for Mr. Huntington a day or two prior to March 6, 1907; that on March 6, 1907, Mr. and Mrs. Huntington came to the office together and that Mr. Huntington's will was completed and Mrs. Huntington's will was drawn and both wills were then executed in the presence of the testators and the witnesses; that the drawing of the wills was the only business transacted for the testators that day; that, when he was called in to witness the wills, Mr. A. D. Howard stated to him in the presence of the testators that they were fixing their wills in favor of the survivor so that when either died the other would get the property.

Mutual wills are those which are executed pursuant to an agreement or compact between two or more persons to dispose of their property in a...