OPINION
EVANS, C. J.
The
instrument Exhibit C was as follows:
"Agreement.
"Whereas,
J. C. Manchester died intestate June 29, 1903, leaving Ella
J. Manchester, his widow, and Edward A. Manchester, his son and only heir at law. The said J. C. Manchester
was at the time of his death the owner of considerable
property, one third of which would have gone to his widow, by
law, and two thirds of which would have descended to his son,
but that, on the 3d day of July, A. D. 1903, the said Edward
Manchester and his wife, Natalie Manchester, joined in a deed
conveying to the said Ella J. Manchester all the real estate
owned by the said J. C. Manchester at the time of his death,
and on the same day, the said Edward A. Manchester joined in
a contract with the said Ella J. Manchester, by the terms of
which all the property, money, and notes of the deceased were
turned over to the said Ella J. Manchester absolutely, except
the one-half interest in the Ballingall Hotel, furniture,
fixtures, and the business. Said deed is recorded in the
quitclaim record W, page 344, in the recorder's office at
Wapello County, Iowa.
"Realizing
the fact that the said Edward A. Manchester might die before
the death of the
said Ella J. Manchester, and in that event the wife of the
said Edward A. Manchester would not be an heir of the said
Ella J. Manchester, and could not by law inherit any of the
said property, and in consideration of the conveyance to me,
by the said Edward A. Manchester and wife, all of the
property which the said Edward A. Manchester would have been
entitled to, as the son and heir of the said J. C.
Manchester, deceased: I, Ella J. Manchester, do hereby agree
that, at my death, the said Edward A. Manchester, if living,
and in case of his death, his said wife, Natalie Manchester,
shall inherit all of the property of which I may die seized,
either real, personal, or mixed. This, however, expressly
understood and agreed that the said Edward A. Manchester or
wife shall have or make no right or claim of any kind to any
part of the property belonging to the said Ella J. Manchester
during the lifetime of the said Ella J. Manchester, but the
same is to remain the property of Ella J. Manchester
absolutely during her lifetime, and at the time of her death
shall be the absolute property of the said Edward A.
Manchester, or in the case of his death, his wife's,
Natalie Manchester, as above stated.
"It
is further agreed that this contract shall take precedence of
and be superior to any will which the said Ella J. Manchester
may have heretofore or hereafter make, except that, if the said Ella J. Manchester should so desire, she is
to have the right to dispose of, by will or otherwise, not to
exceed one third in value of her said property. In witness
whereof, we have hereunto signed our names this 6th day of
January, A. D. 1908.
"Ella
J. Manchester
"Edward A. Manchester
"Natalie
Manchester."
The
foregoing instrument was duly executed on January 6, 1908,
and was duly acknowledged and filed for record.
The
antecedent facts leading up to this alleged contract may be
stated briefly. J. C. Manchester died suddenly, June 29,
1903, leaving no will. He left surviving him his widow, Ella
Manchester, and his only child and heir, Ed Manchester.
Natalie Manchester was the wife of Ed. J. C. Manchester left
an estate of about $ 60,000, free from debts. At the time of
his death, and for some years prior thereto, he had operated
the Ballingall Hotel at Ottumwa, and was the owner of the
hotel equipment therein. Up to the time of his death, the
father, mother, son, and daughter-in-law all lived together
as one family in the hotel, and were all engaged more or less
actively in the operation thereof. On July 3, 1903, being the
next day following the funeral, the son and daughter-in-law
conveyed all the property of the father's estate to the
mother by the following instruments, known in the record as
Exhibits A and B.
"Exhibit
A.
"Know
all Men By These Presents: That Edward A. Manchester and
wife, Natalie Manchester, of Wapello County and state of
Iowa, in consideration of the sum of exchange of property
and one dollar, to me in hand paid by Ella J.
Manchester, of Wapello County, state of Iowa, the receipt
whereof I do hereby acknowledge, have bargained, sold, and
quitclaimed unto the said Ella J. Manchester and to her heirs
and assigns forever all my right, title, interest, estate,
claim, and demand, both at law and equity, and as well in
possession as in expectancy of, in the following described
premises, to wit:
"Lots 36 and 37, Block 3, in Janney's
Addition to Ottumwa, Iowa. Also the northwest 1/2 of the
present brick wall of the two-story brick building situated
on Lot 5, and all of Lot 6 in H. P. Graves et al.
Subdivision of Lots 157 and 160, original plat of Ottumwa,
Iowa. Also, Lot 29 in the Dain Addition to Ottumwa, Iowa;
also, Lots 19 and 20 in Block 17 in S.E. Gross Calumet
Addition to South Chicago, in Cook County, Illinois. Also the
undivided one-fourth interest in the E 1/2 of the NE 1/4 of
the SE 1/4 of Section 24, Township 18, Range 15, and the NW
1/4 of the SW 1/4 and the S 1/2 of the NW 1/4 of Section 19,
Township 18, Range 14, all in Marion County, Arkansas. Also,
all personal property belonging to the estate of J. C.
Manchester, deceased, who died intestate, June 29th, 1903,
leaving the grantee, his widow, and the grantor, his only
child and heir at law. The intention being to convey all
interest in said estate, except the hotel business in
Ottumwa, which is owned by grantor and grantee jointly, as by
written contract this day entered into by the parties, with
all and singular the hereditaments and appurtenances
thereunto belonging, and Natalie Manchester hereby
relinquishes her right of dower in and to the above described
premises.
"Signed
this 3rd day of July, 1903.
"Edward
A. Manchester,
"Natalie
Manchester."
"Exhibit
B.
"Contract.
"This
article of agreement, made and entered into this 3rd day of
July, A. D. 1903, by and between Mrs. Ella J. Manchester,
widow of J. C. Manchester, deceased, of Ottumwa, Iowa, and
Edward A. Manchester, son and only heir at law of said J. C.
Manchester, deceased, of Ottumwa, Iowa, witnesseth:
"That
whereas said J. C. Manchester died intestate, June 29, 1903,
leaving the undersigned as his widow and only heir at law, we
therefore make this contract for the purpose of dividing the
property of which said J. C. Manchester died seized. It is
agreed by and between the parties hereto that the said Ella J. Manchester is to have and to hold in her
own right, by title in fee simple, all the property,
personal, real, or mixed, of which said J. C. Manchester died
seized, except the hotel business and property connected
therewith, including the bar, stock, and fixtures thereto
belonging.
"It
is further agreed by and between the parties that said hotel
business shall be owned jointly by the parties hereto, each
owning an undivided 1/2 interest therein. That the same shall
be conducted under the firm name of J. C. Manchester, but
that the hotel shall be known, in the future as in the past,
as the
Ballingall Hotel. By the hotel business herein referred to is
meant all the furniture and fixtures and property heretofore
belonging to said J. C. Manchester and used in connection
with the said hotel business in the Ballingall Hotel in
Ottumwa, Iowa, including the bar, saloon stock, and fixtures.
"It
is further agreed that the wholesale liquor business
heretofore sold to Z. A. Frazier, by contract entered into
between said Frazier and J. C. Manchester, shall be conducted
in the same firm name, subject to the said contract of sale,
but that the payments, when made, shall be paid to said Ella
J. Manchester, and shall belong to her.
"It
is further agreed by and between the parties that the hotel
business hereinbefore referred to shall be conducted and
managed by both of the parties hereto jointly as a firm or
partnership, and that an accounting of said business shall be
had on request of either party at any time.
"It
is further agreed that the said Ella J. Manchester hereby
assumes all indebtedness against the estate of J. C.
Manchester, and she hereby agrees to pay all past debts of J.
C. Manchester and to hold said Edward A. Manchester harmless
from any indebtedness that might be made a valid claim
against the estate of said J. C. Manchester, deceased.
"In
witness whereof, we have hereunto signed our names, this 3rd
day of July, A. D. 1903.
"Ella
J. Manchester.
"Edward
A. Manchester."
More
than four years thereafter, Exhibit C was executed. In June
1914, the son Ed died testate, survived by his mother and his widow, and leaving his widow as the sole
beneficiary of his will. In May, 1917, the mother died
testate. She left an estate of $ 63,000. She bequeathed to
blood relatives, in stated amounts, the sum of $ 19,000. She
also bequeathed the residue of her estate to one of the same
beneficiaries. She...
