Sawyer v. Sawyer

• Court: Iowa Supreme Court
• Writing for the Court: GARFIELD; All Justices concur except LeGRAND
• Citation: Sawyer v. Sawyer, 152 N.W.2d 605, 261 Iowa 112 (Iowa 1967)
• Decision Date: 31 August 1967
• Docket Number: No. 52553,52553
• Parties: Howard L. SAWYER, and Hulda Rossberg Sawyer, Individually and as Assignee for their Children, Appellants, v. Merl R. SAWYER, Veva D. Davis, Raymond J. Sawyer and Stanley L. Davis, as Executor and Trustee of the Estate of Doil S. Hunter, Appellees.

Page 605

152 N.W.2d 605

261 Iowa 112

Howard L. SAWYER, and Hulda Rossberg Sawyer, Individually and as Assignee for their Children, Appellants, v. Merl R. SAWYER, Veva D. Davis, Raymond J. Sawyer and Stanley L. Davis, as Executor and Trustee of the Estate of Doil S. Hunter, Appellees.

No. 52553.

Supreme Court of Iowa.

Aug. 31, 1967.

Rehearing Denied Oct. 16, 1967.

John D. Randall, Cedar Rapids, for appellants.

D. M. Elderkin, Cedar Rapids, for appellee Stanley L. Davis as executor and trustee of the estate of Doil S. Hunter.

GARFIELD, Chief Justice.

Howard L. Sawyer, oldest of four issue to survive his mother Doil S. Hunter, and his wife Hulda, brought this action in equity in four counts seeking, in effect, to set aside a trust created by the mother's will in the share bequeathed to Howard (to whom we refer as plaintiff). Defendants are Howard's two brothers, a sister and the sister's husband as executor and trustee under the will. Following trial relief was denied and plaintiff has appealed. We affirm the decision.

Briefly, count 1 of plaintiff's petition alleges his mother's will, made November 2, 1961, creating the trust, violated an oral agreement between her and her second husband Sam Hunter (plaintiff's stepfather) under which reciprocal wills made by them January 15, 1959 were also mutual and became irrevocable upon Sam's death February 11, 1960. The bequests to plaintiff under the earlier wills were outright, not in trust.

Count 2 alleges the trust provisions of the mother's 1961 will are so unreasonable as to be void.

Count 3 alleges the oral agreement referred to in count 1 and the earlier wills made pursuant thereto were for the benefit of plaintiff, his brothers and sister and their rights thereunder vested upon Sam's death in 1960. It is obvious that if plaintiff could not recover under count 1 no recovery may be had under count 3 since both are based on the alleged oral agreement to make the 1959 wills irrevocable upon the death of the first to die.

Finally, count 4 of the petition alleges the four children of plaintiff (all adults) have assigned to him their remainder interest in the trust property; in the event the court should hold such assignment did not merge in plaintiff all interests in the trust plaintiff and his wife will waive the assignment and tender into court an assignment from them to their children of the formers' interest in the trust property so title thereto will vest in the children; in the event neither of such assignments is recognized as valid, plaintiff and his wife refuse to take under the will and consent that the interest of plaintiff may vest in the children.

The trial court held proof of the oral agreement declared upon in counts 1 and 3 was wholly insufficient; the alleged unreasonableness of the trust provisions of the mother's 1961 will affords no basis for setting them aside; the trust is a spendthrift one which the beneficiaries may not terminate as attempted here.

I. We first consider a preliminary question. Two weeks after the petition was filed in November, 1964 attorney Keith Mossman entered his appearance and filed answer for all defendants except one brother, Merl Sawyer. Four days before trial was to start in May 1966 Mr. Mossman withdrew this appearance but there was no withdrawal of the answer he had filed which denied the allegations of the original petition consisting only of the first 2 counts above summarized. Two days before trial Attorney D. M. Elderkin entered his appearance for the estate of Doil S. Hunter and the executor and trustee thereof. Thereafter plaintiff amended his petition by adding counts 3 and 4 and defendants Raymond Sawyer and his sister, as well as the executor-trustee, filed answers to the petition as amended.

At commencement of the trial plaintiff's counsel asked that since Mr. Elderkin represented only the estate and the executor-trustee judgment be entered against the individual defendants (two brothers and the sister) for specific performance of the alleged oral agreement for the making of mutual and irrevocable wills. Defendants were all present in court for the trial and all had answers on file. The court reserved ruling on the request of plaintiff's counsel but denied it at the outset of the final decision. Plaintiff contends the ruling was error. We hold it was correct.

The withdrawal of appearance by an attorney does not have the effect of withdrawing his client's appearance of pleadings filed in the latter's behalf. Baker v. Baker, 248 Iowa 361, 365, 81 N.W.2d 1, 3, 64 A.L.R.2d 1421, 1424 and Anno. 1424, 1434--1435, 1443--1444 and citations n. 20; Harris v. Juenger, 367 Ill. 478, 11 N.E.2d 929, 930; 6 C.J.S. Appearances § 30 a, p. 70; 5 Am.Jur.2d, Appearance, section 37, p. 510.

However, an authorized or otherwise rightful withdrawal of the appearance of a party defendant leaves the case in the same condition as if the appearance had never been entered and operates as a withdrawal of defendant's pleadings. Anno. 64 A.L.R.2d 1424, 1452 and citations notes 9 and 10; 6 C.J.S. Appearances § 30 b, p. 70; 5 Am.Jur.2d., Appearance, section 39, p. 512. See also rule 230(c) Rules of Civil Procedure. There was no such withdrawal here.

Of some application is the rule that trials upon the merits are favored and defaults avoided if fairly possible. Severson v. Sueppel, Iowa, 152 N.W.2d 281, and citations p. 286 of opinion as filed July 11, 1967.

II. Considering now plaintiff's claim in counts 1 and 3 that the 1959 wills were made pursuant to an oral agreement they were mutual and would be irrevocable upon the death of the first to die (Sam Hunter), we find no substantial evidence to support such claim. Indeed the evidence is these wills were not made in pursuance of such an agreement.

The earlier wills and Doil S. Hunter's 1961 will were all prepared by Attorney Mossman. Plaintiff called him as his first witness. He testified on direct examination Doil and Sam came to his office together the day the 1959 wills were prepared and discussed with him the terms of the two wills each desired to make.

On cross-examination Mr. Mossman said he explained to them that if they drew a joint and mutual will the survivor could not change it after the death of the other; they both stated they did not want such a will, they wanted the right to make a new will after the death of the first to die and asked him to prepare separate wills without any agreement or provision the wills could not be so changed; accordingly such separate wills were prepared and executed; if the will were intended to be mutual and irrevocable upon the death of the first to die he would have prepared only one joint will for both to execute, reciting therein the agreement under which it was made, as was his custom where irrevocable provisions were desired.

On redirect examination by plaintiff's counsel Mr. Mossman testified: 'I recall they came to my office and wanted separate wills prepared. They did not want a joint and mutual will. I prepared separate wills that could be changed after the death of either party as it was their intention expressed to me at that time that is what they wanted.'

The term 'mutual' is properly applied to wills in this class of cases only where there is sufficient evidence to show a binding agreement to dispose of property of the makers in a certain way. Without such evidence the wills may be reciprocal but they are not mutual. Fr. Flanagan's Boys' Home v. Turpin, 252 Iowa 603, 608, 106 N.W.2d 637, 640 and citations; In re Estate of Croulek, 252 Iowa 700, 704, 107 N.W.2d 77, 79; In re Estate of Logan, 253 Iowa 1211, 1215, 115 N.W.2d 701, 704.

Plaintiff had the burden to prove by clear and satisfactory evidence the alleged oral agreement declared upon in counts 1 and 3. In re Estate of Lenders, 247 Iowa 1205, 1213, 78 N.W.2d 536, 541 and citations; Vilter v. Myers, 255 Iowa 818, 820, 123 N.W.2d 334, 336--337 and citations.

Prior to our Lenders decision we had said several times the existence of such an agreement might be inferred from the execution of reciprocal wills by a husband and wife, at substantially the same time, each with knowledge of the other. However in Lenders we said: 'According to the great weight of authority there must be other evidence of a contract between the testators.' (p. 1214 of 247 Iowa, p. 541 of 78 N.W.2d.)

We have followed the statement just quoted in many subsequent decisions, including In re Estate of Ramthun, 249 Iowa 790, 802, 89 N.W.2d 337, 344; Allinson v. Horn, 249 Iowa 1351, 1356, 1357, 92 N.W.2d 645, 648; Barron v. Pigman, 250 Iowa 968, 972, 95 N.W.2d 726, 729; Fr. Flanagan's Boys' Home v. Turpin, supra, 252 Iowa 603, 609, 106 N.W.2d 637, 640; Vilter v. Myers, supra, 255 Iowa 818, 820, 123 N.W.2d 334, 337.

We find no substantial evidence of the claimed oral agreement here in addition to the inference that might arise under our earlier decisions from the simultaneous execution of reciprocal wills, each with knowledge of the other maker. Even under such decisions certainly the inference referred to could not prevail over the positive testimony of the scrivener, a reputable attorney, that the makers instructed him they did not want a mutual will or mutual wills. Under our cases commencing with In re Estate of Lenders, supra, it is clear plaintiff is not entitled to the relief asked in counts 1 and 3.

III. Reference should be made to the new Iowa Probate Code, now chapter 633 Code 1966, enacted in 1963. By its terms it took effect January 1, 1964. Code section 633.2, subd. 1. However, section 633.2, subd. 2 in part provides 'no accrued or vested right shall be impaired by its provisions.'

This action was commenced in May, 1964. However, as stated, Sam Hunter died February 11, 1960. If the 1959 wills were mutual as plaintiff calims, his rights thereunder accrued and vested upon Sam's death. This is the plain effect of our decision in Floerchinger v. Williams, Iowa, 148 N.W.2d...