Moran v. Moran

• Decision Date: 17 November 1909
• Parties: IOWA L. MORAN, as Executrix of the Will of SELBY B. MORAN, Deceased, Appellee, v. GEORGE W. MORAN, Appellant. Same Plaintiff, Appellee, v. FRANK B. MORAN, Appellant. Same Plaintiff, Appellee, v. VIRGINIA C. RICHARDS, Appellant
• Court: Iowa Supreme Court

123 N.W. 202

144 Iowa 451

IOWA L. MORAN, as Executrix of the Will of SELBY B. MORAN, Deceased, Appellee, v. GEORGE W. MORAN, Appellant.

Same Plaintiff, Appellee, v. FRANK B. MORAN, Appellant.

Same Plaintiff, Appellee, v. VIRGINIA C. RICHARDS, Appellant

Supreme Court of Iowa, Des Moines

November 17, 1909

Appeal from Hardin District Court.--HON. C. G. LEE, Judge.

Decree affirmed.

Dawley & Wheeler and H. A. Huff, for appellants.

Albrook & Lundy, for appellee.

WEAVER J. EVANS, C. J. (dissenting).

OPINION

THE opinion states the case.--Affirmed.

WEAVER J.

In February, 1904, Selby B. Moran, a resident of Hardin County Iowa, died testate, leaving surviving him Iowa L. Moran, his widow, and Selby A. Moran, Lee Moran, Virginia Richards, Frank Moran, George W. Moran, and Eldon Moran, children by a former wife, his only heirs at law. His will, which was duly probated, consists of seven paragraphs, as follows:

Paragraph 1 is formal only, and need not be here set out.

[144 Iowa 453] Paragraph 2 gives to his wife in her own right all his personal property, moneys and credits.

Paragraph 3 is in the following words:

I devise, give, grant and bequeath unto my said wife, I. L. Moran, in fee simple, my home farm upon which I now reside and described as follows: The south half of the northwest quarter and the southwest quarter of the northeast quarter of section seventeen, township eighty-seven, range nineteen west of the 5[degree] P. M., in Hardin County, State of Iowa, to have and to hold the same as her own absolutely.

Paragraph 4 gives to his wife the use of all the rest of his real estate for one year after the testator's death.

Paragraph 5 directs his executrix to sell all the real estate not devised to his wife for the best obtainable cash price and to distribute the proceeds, as follows:

She shall pay to my son Selby A. Moran the sum of five Hundred Dollars, to my son Lee Moran the sum of five hundred dollars, to my daughter Virginia Richards the sum of five hundred dollars, to my son Frank Moran the sum of five Hundred dollars, to my son George W. Moran the sum of five hundred dollars, and shall pay to my son Eldon Moran the remainder of the net proceeds of the sale of said described premises.

Paragraph 6 is in the following words:

I further declare and provide that in case any of the legatees named as beneficiaries in this instrument shall contest the same, such beneficiary or legatee, or beneficiaries or legatees, making such contest shall forfeit thereby his right to any portion of my estate and the provision or legacy provided in this will for such beneficiary or legatee or legatees shall by such act become the property of my said wife, I. L. Moran, absolutely in her own right.

Paragraph 7 appoints Iowa L. Moran the executrix of his will without bond.

After the probate of said will, Virginia Richards, Lee Moran, Frank Moran, and George W. Moran united in beginning an action in equity in the district court of Hardin County against Iowa L. Moran, alleging that the plaintiffs therein were heirs at law of Miranda Moran, first wife of Selby B. Moran, who died intestate in the year 1885, seised of a tract of land, which Selby B. Moran afterward pretended to devise to his second wife by the third paragraph of the will hereinbefore referred to, when, in truth and in fact, said Selby B. Moran had no right, title to, or interest in said lands which he could lawfully devise to any one, and that his will by which he attempted to devise or dispose of said lands was of no force or effect against said plaintiffs, who inherited the same from their mother. This claim was based upon the allegation that the lands had been conveyed by a former owner to the said Miranda Moran by a good and sufficient warranty deed, and that Selby B. Moran, without her knowledge and consent, had fraudulently erased her name as grantee in said deed, and inserted his own in place thereof, which forged and altered deed he caused to be recorded, and, after her death in ignorance of said wrong, he had fraudulently procured a decree of the district court quieting his title in said lands against her children, all of whom by his fraud and concealment had been kept in entire ignorance of their rights in the premises until after his death. Upon these allegations, they sought to have the will adjudged inoperative and of no effect so far as the same purported to devise or dispose of any of the lands alleged to have been owned by Miranda Moran and their own title quieted thereto against the said Iowa L. Moran. The litigation thus begun terminated in a decision by this court sustaining the devise to the second wife. Richards v. Moran, 137 Iowa 220, 114 N.W. 1035.

While the action above referred to was still pending, Iowa L. Moran, as executrix of her husband's will, began an action against George W. Moran to recover the amount of a promissory note given by him to Selby B. Moran July 25, 1896, due six months after date, for the sum of $ 100, with interest at seven percent. By a second count of her petition therein she pleaded the provision of the will of Selby B. Moran for a legacy of $ 500 to the said George W. Moran, and asked that the amount due the estate upon the said promissory note be indorsed and allowed as a payment or set-off against said legacy. By a later amendment to her petition she further set up the sixth paragraph of the will, providing for a forfeiture of all benefits under said will by any heir contesting said instrument, and alleged that said George W. Moran, by uniting in the action above mentioned to dispute the effectiveness of the provisions of said will, had forfeited all right to demand and recover said legacy, and asked that it be so adjudged and decreed by the court. Said Iowa L. Moran also instituted other proceedings against Virginia Richards and Frank B. Moran to have their legacies under the will of Selby B. Moran declared forfeited, alleging the same grounds therefor as were assigned by her in her petition against George W. Moran. To the claim on the promissory note George W. Moran answered denying the execution of the instrument sued upon. In a second count he alleged that the note was made and delivered in the state of Michigan, where he then lived and has ever since resided, and that plaintiff's cause of action on said instrument is fully barred by the statute of limitations of that State, as well as by the statute of limitations of this State. George W. Moran, Frank B. Moran, and Virginia Richards, severally entered their denial of the alleged forfeiture of their right to demand and receive the legacies provided for them by the will of Selby B. Moran. On the trial the executrix, in support of her claim that defendants had forfeited their legacies under the will, introduced the records and files of the action in equity hereinbefore referred to. In support of her claim upon the promissory note of George W. Moran, she introduced the instrument, which is in the following form: "$ 100.00. July 25th, 1896. Six months after date I promise to pay to the order of S. B. Moran one hundred dollars at seven percent interest. Value received. Geo. W. Moran." The defendant, George W. Moran, offered evidence tending to disprove the genuineness of the signature to said note, and plaintiff in rebuttal offered other evidence tending to sustain it. It was also shown without dispute that by the statutes of Michigan actions upon promissory notes are barred if not commenced within six years after the cause thereof accrues. On the record thus made the district court found the plaintiff entitled to recover from George W. Moran the amount of the note sued upon, and entered judgment accordingly. Upon the issues involving the alleged forfeiture of the legacies to George W. Moran, Frank B. Moran and Virginia Richards the court further found that the prosecution of the action first above mentioned was a contest of the will within the meaning of that term in the sixth paragraph thereof, and that the legacies which would otherwise have been payable to said George W. Moran, Frank B. Moran and Virginia Richards were thereby forfeited. The defendants severally appeal. Though the issues between plaintiff and the several defendants were kept distinct and separate in the court below, we think the appeals can be disposed of without confusion in a single opinion.

The appeal of George W. Moran from the judgment rendered against him on the promissory note is submitted upon the single proposition, variously stated, that the trial court erred with respect to the operation of the statute of limitations. Our general statute governing the time within which actions may be commenced provides that claims for recovery upon promissory notes may be begun at any time within ten years after the "causes of action accrue." Code, section 3447. By Code, section 3452, it further provides that: "When a cause of action has been fully barred by the laws of any country where the defendant has previously resided, such bar shall be the same defense here as though it has arisen under the provisions of this chapter; but this section shall not apply to causes of action arising within this state." The note in suit fell due December 25, 1896, and action was begun thereon November 3, 1906. It was therefore barred by the Michigan statute before the death of Selby B. Moran, and whether it is barred in this State depends upon whether it falls within the general provision of section 3452 above quoted, as contended by appellant, or within the exception mentioned in the italicized clause thereof as contended by the appellee. As bearing upon the question whether the note is an Iowa contract, we may say that the evidence fairly tends to show that in the summer of 1896 the appellant...