OPINION
FAVILLE, J.
We are
confronted by an abstract of more than 300 pages, and
arguments totaling 389 pages. The appeal involves three
cases, which are submitted on one appeal. Cross-petitions are
filed, and pleadings imported by reference from one cause
into another. A brief history of this somewhat complex
situation is essential to an understanding of the questions
presented for our determination on this appeal.
One J.
C. Manchester died intestate, June 29, 1903, leaving
surviving him his widow, Ella, and his son, Edward A., the
latter being at the time married to the appellant herein,
Natalie. On July 3, 1903, Edward and Natalie conveyed all of
their interest in the property of the estate of J. C.
Manchester to the surviving widow, Ella.
On
January 6, 1908, the three parties, Ella, Edward, and
Natalie, entered into a written contract, known in the record
as Exhibit C. This instrument is set out in full in the
opinion of this court in Manchester v. Loomis, 191
Iowa 554, 181 N.W. 415, to which reference is made, and which
is essential to an understanding of the questions presented
on this appeal.
In
June, 1914, Edward died testate, survived only by his mother,
Ella, and his wife, Natalie. His widow was sole beneficiary
under his will.
In May,
1917, the mother died testate. Her will, executed December
24, 1914, six months after the death of Edward, is as
follows:
"Last
Will and Testament of Ella J. Manchester.
"I,
Ella J. Manchester, being of sound mind and memory, do make
and declare this to be my last will and testament.
"First.
I desire that at my death all my just debts and funeral
expenses be first paid out of any property of which I may die
seized.
"Second.
I will and bequeath to my daughter-in-law, the widow of my
deceased son, E. A. Manchester, Natalie G. Manchester, the
sum of ten thousand dollars ($ 10,000.00). This bequest is in addition to the half interest in
'Sevenacres' I have heretofore deeded to her, and the
half interest in the hotel property that I have heretofore
conveyed to her by bill of sale.
"Third.
I will and bequeath to my sister, Mrs. Eva Frazier, of
Ottumwa, Iowa, a certain note I hold signed by her husband,
Z. A. Frazier, for four thousand dollars, dated Nov. 1, 1909.
I also give and bequeath to my said sister the sum of ten
thousand dollars ($ 10,000.00) in addition to the note above
described.
"Fourth.
I will and bequeath to my sister, Mrs. May Norfolk, of
Ottumwa, Iowa, the use of and profits from the store property
on East Second Street, being Lot 6 of Graves' Sub. of
part of Block 13, in the original plat of the City of
Ottumwa, Iowa, to have and to hold during her natural life;
and at her death I desire that said property go to my niece
Hazel Norfolk, the daughter of my said sister.
"Fifth.
Subject to the above four clauses of this will, I give and
bequeath all the rest and residue of all property of which I
may die seized, real, personal and mixed, to my niece, Hazel
Norfolk, of Ottumwa, Iowa."
She
executed a codicil to this will, as follows:
"Paragraph 1. I hereby revoke Paragraph fourth of my
said will, and make the following provision in lieu thereof:
"I
will and bequeath to my niece, Hazel Norfolk, the store
property on East Second Street, being Lot 6 of Graves'
Sub. of part of Block 13, in the original plat of the City of
Ottumwa, Iowa.
"Paragraph
2. I hereby revoke Paragraph sixth of my said will and
provide in lieu thereof the following:
"I
hereby nominate and appoint M. A. Roberts, of Ottumwa, Iowa,
as executor of my last will and testament and of my estate.
"Paragraph
3. I further change and modify my said will as follows: It is
my desire, and I so will and direct, that my said
daughter-in-law, Natalie G. Manchester, shall have the use of
the home, the 'Sevenacres,' with all its furnishings
so long as she desires to use it as a home. And that after
she ceases so to use it said property, so far as my interest
therein is concerned, shall be governed by the other
provisions of my will.
"Paragraph 4. I further modify my said will
as follows: As soon as practicable after my death, I desire
that my personal effects, such as clothing, jewelry and the
like shall be divided among my said daughter-in-law, my
sisters, Mrs. Eva Frazier, Mrs. May Norfolk and my niece,
Miss Hazel Norfolk, as they may desire."
Loomis
is the administrator of the estate of Ella Manchester, with
will annexed.
In
July, 1917, an action was brought by Natalie against Loomis,
as administrator, seeking the establishment of Exhibit C, and
praying that she might be adjudged thereunder to be the
absolute owner of two thirds of the entire estate left by
Ella. The trial court held that said Exhibit C was
testamentary in character and void. An appeal was prosecuted
to this court, and the decree of the trial court was
reversed. Manchester v. Loomis, supra. After
issuance of procedendo, the matter came on for hearing on the
proper decree to be entered in pursuance to the opinion of
this court.
On
October 15, 1921, a decree was entered in said cause by Judge
Vermilion, which we shall refer to hereafter as the
"Vermilion decree." Said decree provided, in part,
as follows:
"It
is ordered and decreed that the decree of this court
rendered on or about the 24th day of December, 1918, in the
above entitled cause, from which said appeal was taken, and
found recorded in Judgment and Decree Record 46, at page 155,
of the records of this court, be, and the same is hereby, set
aside, canceled, annulled, and held for naught, and in lieu
of said decree so annulled, the court does hereby further
find, adjudge, and decree that the written instrument headed
'Agreement,' bearing date the 6th day of January, A.
D. 1908, signed, executed, and acknowledged by Ella J.
Manchester, Edward A. Manchester, and the plaintiff, Natalie
G. Manchester, and recorded on the 7th day of May, 1917, in
Record 108, at page 120, of the records of the recorder of
deeds of Wapello County, Iowa, and referred to in the course
of this litigation as Exhibit C, is a legal and valid
contract, binding alike upon all the parties thereto, and
upon their heirs, executors, representatives, and assigns,
and by this reference thereto, and to the official record
in which the same is recorded, is made a part
of this decree. * * * That all the property, real, personal,
and mixed, of every kind, form, and nature, and wheresoever
situated, of which the said Ella J. Manchester was seized or
possessed, or which she had in her possession or under her
control at the time of her decease, belonged to her estate,
and constituted her estate: that is to say, all the property,
real, personal, and mixed, which was owned and possessed by
J. C. Manchester, husband of Ella J. Manchester, at the time
of his decease, of which said Ella J. Manchester was seized,
or which she had in her possession or under her control at
the time of her decease, including all property, real,
personal, and mixed, which Ella J. Manchester had received in
exchange therefor, or for any part thereof, and to include
also any property which represents the income or increase
thereof, and which was in the possession or under the control
of the said Ella J. Manchester at the time of her decease,
the said property and assets being more particularly
described and identified in the schedule of property and
assets which were turned over to E. C. Loomis, administrator,
with the will annexed, by M. A. Roberts, upon his resignation
as executor, to which schedule reference is hereby made, and
by this reference is made a part hereof, belonged to and
constituted the estate of Ella J. Manchester, deceased, and
is disposed of by said instrument Exhibit C and the said will
of said Ella J. Manchester. That, by virtue of the terms and
provisions of said Exhibit C, the said Edward A. Manchester,
had he survived his mother, would have been entitled to take,
hold, and possess as his own property, two thirds in value,
but not in kind, of all the property belonging to the estate
of Ella J. Manchester at the time of her death. That, by
reason of the death of the said Edward A. Manchester before
the decease of said Ella J. Manchester, the plaintiff,
Natalie G. Manchester, under the terms and provisions of said
Exhibit C became entitled, upon the death of said Ella J.
Manchester, to take, hold, and possess in her own right, and
as her own property, two thirds in value, but not in kind, of
all the property, real, personal, and mixed, of every kind
and character, and wheresoever situated, which her said
husband would have taken, owned, and possessed and become
entitled to upon the death of said mother, as hereinbefore
described, embracing the property described
in the schedule last above referred to. It is further
adjudged and decreed that the plaintiff is now entitled to
have accounted to and paid over to her...
