Randall's Estate v. McKibben, 54676

• Decision Date: 11 November 1971
• Docket Number: No. 54676,54676
• Parties: ESTATE of Eva RANDALL, Deceased, Clarance L. Randall, Jr., Executor of the Estate of Eva Randall, Deceased, Plaintiff-Appellee and Cross-Appellant, v. Alma McKIBBEN et al., Defendant-Appellants and Appellee-Cross-Appellants.
• Court: Iowa Supreme Court

Page 693

191 N.W.2d 693

ESTATE of Eva RANDALL, Deceased, Clarance L. Randall, Jr., Executor of the Estate of Eva Randall, Deceased, Plaintiff-Appellee and Cross-Appellant, v. Alma McKIBBEN et al., Defendant-Appellants and Appellee-Cross-Appellants.

No. 54676.

Supreme Court of Iowa.

Nov. 11, 1971.

Haupert, Robertson & Johnson, Marshalltown, for defendants-appellants.

Cartwright, Druker, Ryden & Fagg, Marshalltown, for defendants-appellees and cross-appellants Clarence Randall, Jr. and Darlene Randall Eckhart.

Kemler, McGinnis & Lovig, Marshalltown, for defendant-appellee and cross-appellant James Protzman Randall.

Mote, Wilson & Welp, Marshalltown, for Fidelity Savings Bank of Marshalltown, temporary administrator of the Estate of Eva Randall, deceased, plaintiff-cross-appellant.

RAWLINGS, Justice.

Declaratory judgment action initiated by executor of Eva Randall's (decedent's) estate seeking determination of real estate ownership and to quiet title. From trial court's holding adverse to defendants Alma McKibben and her heirs at law they appeal.

By cross-petition, defendants Clarence Randall, Jr. and Darlene Randall Eckhart ask indemnification of life tenant decedent's estate for advancements by her in satisfaction of a mortgage on realty. Trial court awarded relief prayed, with interest, from date of decree. From that adjudication these defendants cross-appeal.

Reversed on both appeals.

The case was submitted to trial court on a 'Stipulation of Facts'.

August 15, 1894, William Randall and Eva Shipton were married.

February 27, 1904, William G. Randall, for the recited consideration of $6800, bought an 80 acre tract of land in Marshall County. February 28, 1912, W. G. Randall and Eva Randall, as tenants in common, for the recited consideration of $10,800, acquired a nearby 80 acres. These two tracts constitute what is referred to as the 'unimproved' farm.

March 1, 1916, Eva Randall and W. G. Randall, as tenants in common, purchased property, 160 acres, for which they paid $32,000. This is referred to as the 'improved' farm.

September 8, 1921, William G. Randall and Eva D. Randall (one and the same person as Eva Randall, deceased herein), husband and wife, executed a joint 'Last Will and Testament', (Exhibit A).

November 5, 1921, William G. and Eva D. Randall executed a 'Codicil', (Exhibit B), to their aforesaid will.

At the time Mr. and Mrs. Randall effectuated the will and codicil thereto, Supra, they owned the 'improved' and 'unimproved' farms, both of which were then mortgaged.

When the above mentioned joint will and codicil thereto were executed William G. and Eva Randall had two children, Clarence, (father of Clarence L. Randall, Jr.) and Alma McKibben.

April 13, 1930, William G. Randall died testate, the 1921 joint will and codicil being then in full force and effect.

January 24, 1931, the 1921 jointly executed will of William G. Randall, with codicil thereto, was admitted to probate, Eva being ultimately appointed executrix. She thereafter filed a 'First and Final Report' which discloses all property in the estate had been 'turned over' to Eva D. Randall as provided in Item II of the joint will, Supra, for her lifetime use and benefit. Subsequently Eva, in writing individually acknowledged receipt thereof. January 31, 1959, William's estate was closed.

At time of William G. Randall's death the 'improved' farm mortgage balance was $10,000, and that on the 'unimproved' farm $8000.

September 21, 1932, foreclosure of the 'unimproved' farm mortgage was instituted and November 2, 1932, a decree of foreclosure was entered, supplemented July 28, 1934.

March 1, 1933, bankruptcy proceedings were started against Clarence Randall, from which he was discharged August 22, 1933.

November 12, 1934, for $9600, Clarence Randall bought the 'unimproved' farm from the mortgage foreclosure purchaser.

November 12, 1934, Clarence Randall placed a $10,500 mortgage on the 'unimproved' farm.

May 23, 1967, Eva Randall died, then a resident of Marshall County.

June 5, 1967, a 'Will' executed by her August 12, 1961, (Exhibit 1), with 'Codicil' (Exhibit 2), dated February 11, 1965, was admitted to probate.

June 5, 1967, Clarence L. Randall, Jr., was appointed executor of Eva's estate, and so qualified. The Fidelity Savings Bank of Marshalltown was later named temporary administrator August 26, 1969, to represent the estate in the instant action, being substitute plaintiff.

Notice of probate of will, appointment of executor and notice to creditors regarding Eva's estate was published June 8, 1967 and June 15, 1967. More than one year has elapsed since the second publication.

Eva was survived by no spouse, her husband, William, having predeceased her, and she never remarried.

At time of William's death, Eva was 54 years of age, then having a life expectancy of 18.09 years.

Subsequent to William's death his widow Eva satisfied the outstanding mortgage indebtedness of $10,000 against the 'improved' farm by 11 varying payments. She also paid interest due each year on that mortgage secured obligation.

The will executed September 8, 1921, by William G. and Eva D. Randall, (Exhibit A), provides, in material part:

'Item II. It is our will and we direct that, Upon the happening of the death of either of us, all property, both real and personal, of which we may be possessed at the time of such death shall be disposed of as follows: (Emphasis supplied).

'The surviving husband or wife, as the case may be, shall be entitled to have, receive and use the rents, income and profit thereof during the remainder of the natural lifetime of said survivor, it not being the intention of either testator herein to give or confer a greater interest to the survivor in said property then a life estate with all the privileges and emoluments which pertain to life estates, such Survivor to be chargeable with the payment of interest if any encumbrances remain thereon, and to be chargeable with the payment of annual taxes and any special assessments which may be levied against said property, And each party hereto does hereby expressly waive right of dower and right of homestead in the property of the other, and consents to be bound by the mutual obligations of this joint will, and consents to take under its terms and provisions in lieu of dower and homestead rights.' (Emphasis supplied).

Item IV. In essence, this paragraph bequeaths $1000 to Edna Protzman, foster daughter, and the same sum to James Protzman, foster son, but specifies, 'Such bequests, however, shall not mature and become payable until the decease of both joint makers of this will * * *.' (Emphasis supplied).

Item V. This paragraph provides, in substance, subject to an exception if Eva survived William, 'at the time of the decease of the last survivor of this joint will', life insurance proceeds, if any, be paid by the insurer in satisfaction of any mortgage indebtedness. (Emphasis supplied).

Item VI. Essentially this paragraph states, subject to prior provisions, the son, Clarence L. Randall, shall have a life estate in the 'unimproved' farm.

Item VII. In effect, this paragraph, also subject to prior provisions, gives Alma L. McKibben, daughter, a life estate in the 'improved' farm.

Item VIII. Provision is hereby made for appointment of an executor of the estate 'after the decease of both makers of this joint will * * *.' (Emphasis supplied).

December 5, 1921, William G. and Eva D. Randall executed a codicil (Exhibit B) thereby first declaring it to be an 'addition and amendment to the joint Last Will and Testament' made and executed by them on the 8th day of September, 1921. (Emphasis supplied). This instrument also provided, upon the death of Clarence L. Randall and Alma L. McKibben, son and daughter of William and Eva, the property in which their aforesaid children had been granted a life estate by the joint will (Exhibit A) vest absolutely in their respective heirs at law.

The will executed August 12, 1961, by Eva Randall (Exhibit 1) is in material part as follows:

'ITEM II

'I direct my executor hereinafter named to divide the balance of my estate into four equal parts, and I hereby give, devise and bequeath one of said parts to my daughter Alma McKibben, one of said parts to my grandson Clarence L. Randall Jr., one of said parts to my grandaughter Darlene Eckhart, and one of said parts to my foster son James A. Randall, to be their absolute property.'

Item III disqualifies any beneficiary contesting the will.

Item IV designates executor of estate.

A February 11, 1965 codicil to the foregoing 1961 will of Eva Randall (Exhibit 2) essentially declares:

'ITEM I

'At Item I of my will made and executed on the 12th day of August, A.D., 1961, I have directed that the expenses of my last illness and burial and the costs of administration of my estate should be first paid. Immediately following said Item I and before Item II, I wish to insert this bequest and devise, to-wit: I hearby give, devise and bequeath to my daughter-in-law, Mabel Randall, in the event she survives me, the sum of Two Thousand Dollars. In the event Mabel Randall does not survive me, the gift, devise and bequest to her shall lapse.

'This Item above shall be prior to Item II of my said will made and executed August 12, 1961 and after Item I thereof. In all other respects, I confirm and ratify my said will of August 12, 1961.'

Defendants Alma McKibben, her heirs at law, and Edna Protzman contend the 1921 joint will and codicil (Exhibits A and B) constitute a mutual testamentary instrument and should control. Trial court disagreed and held Eva Randall's 1961 will and codicil (Exhibits 1 and 2) govern disposition of the property here involved. As aforesaid, defendants Alma McKibben and her heirs at law here take issue with that adjudication.

Trial court further held the estate of Eva Randall was entitled to $500 reimbursement for multiple payments made by her in satisfaction of the...