Newell v. Newell's Estate, 36065.

• Decision Date: 17 October 1924
• Docket Number: No. 36065.,36065.
• Citation: 200 N.W. 238,198 Iowa 710
• Parties: NEWELL v. NEWELL'S ESTATE ET AL.
• Court: Iowa Supreme Court

198 Iowa 710

200 N.W. 238

NEWELL

v.NEWELL'S ESTATE ET AL.

No. 36065.

Supreme Court of Iowa.

Oct. 17, 1924.

Appeal from District Court, Wapello County; F. M. Hunter, Judge.

Appellee, the surviving spouse of Samuel Newell, deceased, filed a claim against the estate of her husband for $2,000 and interest alleged to have been advanced by her to her husband in his lifetime under an agreement that the same would be repaid to her. By an amendment to her claim, she claimed the further sum of $1,100 and interest for money alleged to have been advanced to him under a like understanding. The first claim was filed September 26, 1921, upon which plaintiff claimed interest from March 1, 1919. The amendment setting up the second claim was filed October 22, 1921. At the close of all the testimony, on plaintiff's motion, the court directed the jury to return a verdict for her in the sum of $3,738.10. Such a verdict was returned, and the amount by the court allowed as a claim against the estate. The defendant appeals. Reversed.Roberts & Webber, of Ottumwa, and Thos. J. Bray, of Oskaloosa, for appellant.

Jaques, Tisdale & Jaques, of Ottumwa, for appellees.

PRESTON, J.

The original claim recites that it was for cash advanced on or about March 1, 1919, under an agreement and understanding that the same should be repaid to her, with interest thereon at 6 per cent., from said date, $2,000, and that the circumstances connected with this transaction are briefly as follows: When decedent bought the O'Neil 40 acres, he did not have money enough to pay for same; that this claimant had $2,000 of her own individual money, which she had inherited prior to her marriage, and she let her husband have same on the understanding that he would repay her therefor, and her said husband used the money as part of the purchase money of said land; that said money has never been repaid. The amendment recites that it is for cash advanced on or about March 1, 1920, under an agreement and understanding that the same should be repaid to her with interest, $1,100, and that the circumstances are that, when deceased bought the Ross 190 acres of land, he did not have enough money to pay for same; that this claimant had $1,100 of her own individual money, which she had inherited prior to her marriage, and she let her husband have same on the understanding that he would repay her therefor, and her husband used the money as a part of the purchase money of the Ross land; that it has not been repaid.

The claimant and deceased were married October 7, 1908. Decedent died August 12, 1921. In September, 1921, claimant petitioned the court for appointment as administratrix, and she was appointed and qualified. Later A. W. Enoch was appointed to investigate in regard to the claim of plaintiff.

The answer, in addition to a denial of the claim, pleads the statute of limitations.

1. The principal question, as appellant states it, is that plaintiff was not entitled to a directed verdict because the facts necessary to be established by her were not admitted in the pleadings, or conceded on the trial, or proven by undisputed evidence; and, second, that the burden was on claimant to prove, not only that she had advanced money to her husband, but that there was an agreement to repay it; that, if the wife advances money or property to the husband to be employed in his business, without a contract to repay the same, the reasonable presumption is that the advancement is made in view of the mutual benefits which are likely to accrue from the use of the advancement; that a gift from the wife to her husband of property belonging to her separate estate, in the absence of all evidence that it had been given to him to be held for her use, or of a promise on his part to repay it, is presumed to be intended as an absolute gift, and she has therefore no claim against his estate; and that under the circumtances the law will not create the relation of debtor and creditor between the parties, or imply an agreement when the parties have not entered into one. Consequently she cannot recover in an action against him or his estate.

[1] The argument on the second proposition is as to the form of the statement or allegation in the claim and amendment. The thought is that the real claim is that there was a specific contract or agreement by the deceased to repay, and that the allegations state only an implied agreement. Appellee urges that this is sufficient. We have held that it is not necessary that a claim in probate be stated with the same fullness and particularity as a petition in an ordinary case, and that the same conformity of proof to the allegations of the claim is not required as in an ordinary action; the same formality is not required; liberality is indulged in stating a claim in probate. Craig v. Craig, 167 Iowa, 340, 149 N. W. 454;Harrison v. Harrison, 124 Iowa, 528, 100 N. W. 344;Thompson v. Romack, 174 Iowa, 155, 156 N. W. 310;Estate of Howell, 179 Iowa, 969, 974, 162 N. W. 231. Considering the allegations of the claims and the law, we think appellant has no just cause for complaint at this point.

2. At the August, 1922, term of the Wapello district court, the claimant was a witness in an action entitled Ellis v. Samuel Newell. She testifies in this case that she then testified:

“That the money that I had filed a claim for here was loaned to my husband shortly after we were married in 1908. I told Mr Jaques that I had a claim for $2,000.

Q. How much of that money did you earn as a girl? A. I had about $5,000.

Q. Well, how much did you earn of that? A. Well I suppose I earned it all. I put that $2,000 into the O'Neil place right after I was married in 1908.”

Of the foregoing testimony appellee says, in argument:

“It matters not what Lillian C. Newell testified to in the case of Ellis v. Newell as to the time she loaned the money to her husband. She did not testify that she then put the money in the O'Neil place, but her husband had got the money and used it for various purposes, and thereafter got additional money that was used in the purchase of the O'Neil place. This claim for $2,000 and the amendment thereto for $1,100 are not based on moneys loaned in 1908, but on the cashing of the two certificates for $2,000 and $1,100 at the times shown by the testimony.”

As to the last statement, it may be remarked that the claims as filed do not refer to the certificates of deposit, so that there is some discrepancy between the claim as filed and the claim now made. We recognize the difficulty in proving claims against estates because of the dead man's statute, and that this difficulty applies to claims which are just. Some claims are so and others are not. As administratrix, claimant had possession of the papers of her deceased husband, and she had knowledge of the certificates before the claims were filed, at least the amended claim. She testifies:

“I have in my possession all of the papers, checks, and records of deceased, besides what the Kirkville bank had. I have some checks that were issued by deceased in his lifetime and a large number of receipts, either at the bank or in my home, in my possession and under my control. I did not bring them to the trial. I did not think it was necessary. * * * When I filed the first claim, I had been advised that I wouldn't be permitted to testify to any personal transaction with deceased, and that, in order to prove my claim, I would have to get outside evidence as to the loaning of this money to deceased. I read the claim over and knew what it contained before I signed and swore to it. * * * At the time I filed the second claim in October, I had then ascertained the fact in regard to these certificates of deposit in the Chillicothe Savings Bank and knew that I could show the facts by other evidence than my own. * * * When I filed the second claim, I do not know if I had full knowledge of what the records of the Chillicothe Bank showed. I had knowledge enough to know that I had two certificates.”

Claimant attempts to explain this discrepancy by showing that on October 6, 1921, some two weeks before the second claim was filed, she had a letter from Cashier Jenkins, of the Chillicothe Savings Bank, to her, saying:

“Am sending you copy of certificates of deposit you had with us: When made: $2,000 on August 26, 1918; $2,000 on February 26, 1919; $1,100 on August 26, 1919. When paid: $2,000 on February 26, 1919; $2,000 on August 26, 1919; $1,100 on February 26, 1920.”

It seems to be conceded that the $2,000 certificate of deposit dated February 26, 1919, was a renewal of the one dated August 26, 1918. A deposit slip was introduced in evidence, dated February 25, 1920, Samuel Newell in the Chillicothe Savings Bank, certificate and interest, $1,122.

[2][3] In regard to claimant's testimony in the Ellis Case, we think it does matter, and that it is of some importance. It is in the nature of impeachment and contradicts her present claim. It affects to some extent her credibility as a witness and the good faith of her present claim and bears upon the question as to when, if at all, she let deceased have the money. Ordinarily the credibility of witnesses and inferences to be drawn from their testimony and questions as to good faith, and so on, are not for the court. Wildeboer v. Petersen, 187 Iowa, 1169, 1170, 175 N. W. 349;State v. Carpenter, 124 Iowa, 5, 11, 98 N. W. 775;Hess v. Dicks, 192 Iowa, 378, 382, 184 N. W. 742.

Again it is argued by appellee that witness Abegg “testified that deceased had a guardian's account in his bank, the Kirkville Savings Bank, not the Chillicothe Savings Bank, of between $8,000 and $9,000; that half of it belonged to his ward, and from what Samuel Newell said to him he got the impression and the understanding that half the balance belonged equally to Samuel Newell individually, and the other half of the balance to his wife, Lillian C. Newell.” Here again the inference is sought to be drawn that the $2,000...