Prouty v. Matheson

• Decision Date: 23 January 1899
• Parties: PROUTY ET AL. v. MATHESON ET AL.
• Court: Iowa Supreme Court

107 Iowa 259

77 N.W. 1039

PROUTY ET AL.

v.MATHESON ET AL.

Supreme Court of Iowa.

Jan. 23, 1899.

Appeal from district court, Pottawattamie county; N. W. Macy, Judge.

Action in equity to recover the amount alleged to be due on certain promissory notes, and to foreclose mortgages executed to secure their payment. The defendants pleaded several defenses. There was a hearing on the merits, and a decree in favor of the plaintiffs. The defendants appeal. Affirmed.A. W. Askwith, for appellants.

N. M. Pusey, for appellees.

ROBINSON, C. J.

The plaintiffs are executors of the estate of William Garner, deceased, and the defendant Mary E. Matheson is one of his daughters, and the defendant Henry C. Matheson is her husband. On the 1st day of June, 1885, the defendants made to the order of W. B. Somers their promissory note for the sum of $2,500, payable five years after its date, and a trust deed on 190 1/2 acres of land owned by Mrs. Matheson to secure its payment. On the same day the defendants executed to J. W. Squire, trustee, their two mortgage notes, each of which was for the sum of $187.50, one payable May 1, 1886, and the other one year later. Squire was also the trustee named in the trust deed. In September, 1887, the payee of the notes and the trustee duly transferred to Garner the three notes, and the mortgages given to secure their payment, and an assignment of the trust deed was recorded on the 29th day of the same month. In March, 1892, Garner died testate. By his will he made provisions for his wife, a sister, and several children, including Mrs. Matheson. Her share was given to her to be used during her natural life, and at her death it was to go to her children. The will also contained the following: “I also direct my administrators hereinafter mentioned not to render any widows or orphan children or disabled persons homeless in settling up my estate.” The plaintiffs seek to recover the amount due on the notes described, and to foreclose the mortgages given to secure their payment. The defendants admit the making of the notes and the execution of the mortgages, and aver that the decedent did not purchase the notes and mortgages, but paid them, and at the time intended that the payment should be a gift to Mrs. Matheson, which she at the time accepted. The defendants further allege that Mrs. Matheson is a disabled person, and that the foreclosure of the mortgages would render her homeless, and is therefore forbidden by the terms of the will. The district court found and adjudged that the notes and mortgages were valid obligations of the defendants, but that it was the intention of the testator not to charge Mrs. Matheson with interest, and rendered a decree in favor of the plaintiffs for $2,875, and foreclosing the mortgages, but provided that execution should not issue until the further order of the court that Mrs. Matheson might apply to the probate court for an order permitting her to apply on the judgment that part of the estate of the decedent to which she was entitled.

1. In reply to the answer, the plaintiffs pleaded a former adjudication. It appears that in November, 1892, Mrs. Matheson filed, in the probate court having jurisdiction of the settlement of the estate of the decedent, a petition in which she claimed to be entitled to one-eleventh of his estate; that the provision of the will which referred to her share was void for uncertainty; and that the executors claimed that she was not entitled to her full share, on the ground that the testator had made advancements to her. But the petition averred that the will expressly gave to the petitioner a full share, equal to that of the other heirs, without any deduction therefrom, and asked that the executors be directed to pay to her one-eleventh of the estate. The executors filed an answer to the petition, in which they alleged the giving of the notes and mortgages involved in this action, and that Mrs. Matheson was indebted to the estate for the amount thereof. They asked that the will be sustained so far as it concerned the rights of Mrs. Matheson, and, if she was found to be entitled to participate in the distribution of the moneys and effects of the estate, that the executors be authorized to apply her share, so far as necessary, to the payment of the notes. The probate court found...