Moran v. Moran

• Decision Date: 18 December 1897
• Citation: 73 N.W. 617,104 Iowa 216
• Parties: WILLIAM MORAN, Executor, v. WILLIAM D. MORAN, et al., Appellants
• Court: Iowa Supreme Court

73 N.W. 617

104 Iowa 216

WILLIAM MORAN, Executor, v. WILLIAM D. MORAN, et al., Appellants

Supreme Court of Iowa, Des Moines

December 18, 1897

Apeal from Dallas District Court.--HON. J. H. APPLEGATE, Judge.

THIS is a proceeding asking for the construction of the will of John Moran, deceased. The will is in the following language, so far as it is important for the purpose of this proceeding "Will of John Moran. Before these present, I will and bequeath to Patrick Moran five hundred dollars of money. I will and bequeath to William Toomey nine hundred dollars of money. I will and bequeath to Patrick Doyle three hundred dollars of money. I will and bequeath to the Catholic priest who may be pastor of the Beaver Catholic church, when this will shall be executed, three hundred dollars, that masses may be said for me. I will and bequeath to my brother William five hundred dollars, and to my brother Michael fifteen hundred dollars, and to my sister, Mary Moran, five hundred dollars, and to be divided among the Sisters of Charity, by William Toomey, William Moran, and Rev. H. V. Malone, five hundred dollars. And I will to William Moran, my nephew, a son of my sister, Mary, my farm." The witnesses to the will are William Moran and William Toomey, both of whom are legatees in the will. The probate of the will was contested on the ground, among others, that the subscribing witnesses were legatees thereunder. The testator died without issue and unmarried. He left surviving him William D. and Michael and Mary Moran, as brothers and sister, who, in the absence of the will would inherit the estate. They are defendants in this proceeding, with others, and each is a legatee under the terms of the will. After the filing of the objections to the probate of the will, William Moran, who was a legatee under and subscribing witness to, the will, filed his answer to the objections, in which he expressly denied that he had any interest in any devise or legacy provided by the will, and alleged that the devise of the farm to him was in trust only, for the children of his sister, Bridget Tiernan, which trust was declared by parol by the testator, and by the parol agreement on his part to accept said trust. William Toomey the other subscribing witness, also filed his written relinquishment of any provisions of the will in his favor, and upon a hearing the will was admitted to probate. The plaintiff, as executor, institutes this proceeding, with all parties in interest as defendants, and asks the court to determine what provisions of the will are valid and should be executed. Defendant William D. Moran answers the petition, representing that the bequest of three hundred dollars, that masses might be said, and also of five hundred dollars, to be divided among the sisters of charity, are void, and also that the devise of the farm to William Moran cannot be established and treated as a trust in favor of the children of Bridget Tiernan, but that, because of the relinquishment by William Moran, the same becomes a part of the estate, for distribution among the heirs at law as if the said john Moran had died intestate. Other pleadings were filed, by other parties, presenting their respective claims for construction in accord with their interests. The district court adjudged the bequests for masses and to the Sisters of Charity valid, and that the devise to William Moran, of the farm, was in trust for the children of Bridget Tiernan. The defendant William D. Moran appealed.--Modified and affirmed.

MODIFIED AND AFFIRMED.

Bobt. S. Barr and Shortley & Harpel for appellant.

White & Clarke for appellees.

OPINION

GRANGER, J.

I.

We first notice the question whether or not what appears by the terms of the will to be an absolute devise to William Moran of the farm can be shown by parol evidence to be in trust for the children of Bridget Tiernan. It appears that the will was drawn by Father Malone, a Catholic priest. There were present, other than the priest and the testator, William Moran and William Toomey, who were subscribing witnesses. The situation will be best seen by quoting from the record a little of the evidence. Father Malone testified: "When I sat down, I told him now we were ready to write anything he wanted us to write; and he says to me, the very first thing, 'I want Billy, here, to take that farm, and give the benefit to those children.' I says, 'What children do you mean?' and he says, 'The Tiernan children.' We didn't understand how he wanted the title fixed,--whether he wanted it left to the Tiernan children by will, or leave it to William in trust. Q. What was said by him? What did he say in reference to that? A. I stopped and hesitated quite a bit, because I didn't want to disturb the man any more than was necessary. I remember I said: 'John, you don't fix the title to that property, and, if we write it down the way you say it would be very vague. Can't you make it clearer?' He says: 'Billy can explain it to you, if you want it.' And it seemed to worry him when I said that. I says: 'Let us drop that out until we write the rest, and leave that to the last.' When we had written the other items, I says: 'I believe we have written all but that.' He says: 'I want it left to Billy, simply.' I wrote it down, and says: 'Is that what you want?' He says: 'Yes, sir; that is it exactly. Billy will know what to do with the children.' In order to get more information without questioning, I says: 'That is a very good idea. Some of the children are very young, and they might squander it.' He says: 'That is it, exactly. Some of them might not be as good as they might be, and, if they got any part of this property, they might squander it; and, in order to prevent it, I want him to have that title, so that he can discriminate among them as he sees fit.' And then he made the remark that it would prevent litigation and keep it out of court." William Moran, the devisee, testified as follows: "He said he wanted to leave it to these children, for their use and benefit, and he wanted to put it in my name, so there would be no costs or court expense. For that reason it was put as it was." "I asked him if he had any particular choice, that he should leave more to one than to others. He said, 'No;' if they were all good, he wanted them to get equal amounts, and, if there was any poor ones (that is, ones of bad character), he didn't want them to have anything. I consented I would carry out his instructions if I was permitted to do so."

While there is a claim otherwise, we think it clearly appears, by parol evidence, that the testator's intention was to devise the farm to Moran, only for the use and benefit of the Tiernan children. With this expression of opinion as to the sufficiency of the evidence if admissible, we may better consider the legal proposition whether, under the provisions of our statute, such evidence is competent to show the fact. It will be remembered that the devise is absolute to Moran of the farm, in the following language: "I will to William Moran, my nephew, son of my sister, Mary, my farm." Can the devise so made, by evidence like the above, be so affected, changed, or modified as to give it the effect of a devise in trust to Moran for the use and benefit of said children? Upon this question the parties are in very earnest contention; appellant saying it cannot, because of the following provision of the Code of 1873, in force at the time of the execution of the will, and of the trial of the case in the district court.

"Sec. 1934. Declarations, or creations of trusts or powers, in relation to real estate, must be executed in the same manner as deeds of conveyance; but this provision does not apply to trusts resulting from the operation or construction of law."

"Sec. 2326. All * * * will, to be valid, must be in writing, witnessed by two competent witnesses and signed by the testator, or by some person in his presence, and by his express direction."

Reliance is also placed on the statute of frauds.

Appellees maintain that the devise can be so affected, and state two propositions, either of which is said to be sufficient to support the conclusion,--first, that "the case is not within the statute of frauds or of wills," and "that it has been held universally, in such cases as the one at bar, that the statutes are inapplicable and are not to be invoked to accomplish a fraud. " A little sifting out of claims that we are disposed to disregard, will tend to simplify the disposition of the question. The statute of frauds seems, by its express language, to prescribe a rule of evidence applicable to contracts; and, without any holding on the question, we may say that it is a matter of serious doubt if it was ever intended to apply to testamentary dispositions of real estate. Section 1934 of the Code of 1873, providing that "declarations or creations of trusts or powers in relation to real estate must be executed in the same manner as deeds of conveyance," is a section of a chapter on real estate, the purport of which seems to be as to transactions other than those of a testamentary nature; and without placing any construction on the scope of either of those statutory provisions, they may be understood as in no way influencing our conclusion on this question. The statutory law that we do regard as applicable and controlling is that "Of Wills and Letters of Administration," wherein it is provided who may dispose of his property by will, and how it shall be done. After specifying the circumstances under which personal property may be disposed of by verbal will is the provision we have quoted above, that "all other wills, to be valid, must be in writing, witnessed by two competent witnesses and signed by the testator, or by some person in his...