Newberry v. Newberry

• Decision Date: 17 October 1901
• Citation: 87 N.W. 658,114 Iowa 704
• Parties: ELIZA A. NEWBERRY, Plaintiff, v. O. O. NEWBERRY, Executor and Legatee and CHARLES W. NEWBERRY, Appellant
• Court: Iowa Supreme Court

87 N.W. 658

114 Iowa 704

ELIZA A. NEWBERRY, Plaintiff, and CHARLES W. NEWBERRY, Appellant v. O. O. NEWBERRY, Executor and Legatee

Supreme Court of Iowa, Des Moines

October 17, 1901

Appeal from Lee District Court.--HON. HENRY BANK, Judge.

ACTION in equity to determine the interest of the plaintiff Eliza in the estate of her deceased husband, A. B. Newberry. From a part of the decree rendered, Eliza A. and Charles W. Newberry appeal, and from a part the defendant O. O. Newberry, as executor and for himself individually, appeals. Eliza and Charles W. Newberry, having first perfected their appeal will be designated as appellants.

Affirmed.

James C. Davis for appellants.

Herminghausen & Herminghausen and A. J. McCrary for appellee.

OPINION

GIVEN, C. J.

I. Mrs Newberry claims under an agreement entered into by her and her husband for her support, and also for an allowance for one year's support and distributive share in her husband's estate. These claims were consolidated and tried together, and appeals taken as already stated. Appellants filed what appears to be a sufficiently full and correct abstract of the entire case. Appellee filed "an abstract of record on their cross appeal" of about 44 pages, and this the appellants moved to strike, and to tax the costs thereof to appellee. The first 21 pages of this abstract are a copy of the first 18 pages of appellants' abstract. Pages 21 and 26 set out at length what purports to have been an affidavit prepared for Mr Newberry to verify, but which never was verified. This document is not referred to in argument, and appears to be entirely immaterial in this case. The remaining pages contain matter that sufficiently appears in appellants' abstract. We discover no necessity for filing this abstract, and the motion is therefore sustained.

II. A. B. and Eliza Newberry were married many years ago, and there were born to them two sons, the parties to this action. Mr. and Mrs. Newberry lived on a farm in Lee county until about 30 years ago, when they separated, she going to live in a house in the town of Montrose, belonging to him, and he remaining on the farm. They ever after lived apart, Mr. Newberry and the sons contributing to her support, but whether to the full extent necessary is in dispute. In December, 1897, Mrs. Newberry commenced an action against her husband for separate maintenance, and filed a motion therein for a temporary allowance pending the action. On the seventeenth day of January, 1898, pending said action and motion, the parties entered into a written agreement in settlement of the same, and thereupon an entry was made. "This case is settled and dismissed upon payment of costs." Under the agreement Mr. Newberry was to and did pay the costs and an attorney's fee of $ 50 to her attorneys. The agreement, after reciting the facts of their separation, the pendency of said action, and the desire of the parties "to settle said controversy, and arrange for a permanent and definite allowance to be made by said A. B. Newberry for the support of said Eliza A. Newberry during her natural life," provided as follows: "First. That the said A. B. Newberry hereby gives and conveys unto said E. A. Newberry for the term of her natural life the following described property, to wit, 'Lots 10, 11, and 12 in block 14, town of Montrose, Lee county, Iowa.'" Further provision is made that A. B. Newberry should pay all taxes due or to become due on said lots. "Second. Said A. B. Newberry further agrees to pay to said Eliza A. Newberry the sum of four hundred dollars ($ 400) per annum, payable in quarterly instalments. * * * The said payment of four hundred dollars per annum, as above provided, to be in lieu of all liability of whatever kind or character which A. B. Newberry will be under for the support and maintenance of said wife. And for the faithful performance of this condition of the contract said A. B. Newberry binds himself, his heirs and executors." It is further provided that the payment of $ 400 shall be secured by a lien upon all the real estate then owned by said A. B. Newberry, "sufficient interest in said real estate being conveyed to said E. A. Newberry to perfect and perpetuate said lien." Here follows a description of said lots in Montrose, 4 other lots in Argyle, and 17 tracts of land. Provision was made as to certain results that might follow a failure to make the quarterly payments, and then the following: "And the said Eliza Newberry, by her signature to this agreement, accepts the conditions of this agreement as satisfactory, and accepts the same in lieu of all her interest in the real estate owned by said A. B. Newberry." This instrument was duly executed and acknowledged by the parties, and Mr. Newberry thereafter paid the quarterly installments up to the time of his death, August 1, 1898. He died testate, leaving the plaintiff, his widow, and said two sons, his only heirs, surviving him. By his will, which was admitted to probate, he gave certain of his property to each son, and the residue to O. O. Newberry. The only provision made in the will as to the widow is as follows: "Fifth. Having made and entered into an agreement with my wife on Jany. 17th, 1898, in settlement of an action instituted by her against me, and in settlement of all the property rights she has in my property, which contract was filed for record Jany. 29th, 1898, after being duly signed and acknowledged, in the county recorder's office at Keokuk, Lee county, Iowa and recorded in Book 36, on page 280, I hereby enjoin upon my son O. O. Newberry to comply with after my death as fully as I might do if living." O. O. Newberry was appointed and qualified as executor, and as such paid to his mother the quarterly instalments up to October 10, 1899.

III. The plaintiff Eliza Newberry asks a decree establishing her right to be paid $ 400 per annum during her life under said agreement. The court found against her on this claim, holding that said agreement was made "with reference to the interest which they respectively had in each other's property," and therefore void; and it is from this ruling that Eliza A. Newberry appeals, Charles W. Newberry joining therein. Section 3154 of the Code contains the following: "When property is owned by the husband or wife, the other has no interest therein which can be made subject of contract between them." Appellants' counsel cite cases wherein agreements as to alimony have been sustained in cases wherein divorce was about to be or had been granted; notably Blake v. Blake, 7 Iowa 46; Martin v. Martin, 65 Iowa 255, 21 N.W. 595; Nieukirk v. Nieukirk, 84 Iowa 367, 51 N.W. 10. Those agreements were sustained for the reason that the marriage relation was dissolved; but not so in this case. Appellants contend that the agreement does not refer to the right of dower, nor to any further interest the wife might have in the estate of the husband. The language of the agreement forbids such a construction. It was in settlement of the pending suit, and it was to give Mrs. Newberry a definite allowance for her support during her lifetime. By the agreement Mr Newberry conveyed to her a life estate in the lots in Montrose, and agreed to pay her $ 400 per annum "for the term of her natural life, * * * to be in lieu of all liability of whatever kind or character which A. B. Newberry will be...