Scanlon v. Scanlon
| Decision Date | 06 April 1912 |
| Parties | CHARLES SCANLON and others, Appellants, v. GEORGE SCANLON and others, Appellees |
| Court | Iowa Supreme Court |
Appeal from Johnson District Court.--HON R. P. HOWELL, Judge.
ACTION in equity for partition of real estate. There was a decree for the defendant, and plaintiffs appeal. The material facts are stated in the opinion.--Affirmed.
Decree affirmed.
Remley & Calkins and W. J. Clair, for appellants.
Ball & Ball and Wade, Dutcher & Davis for appellees.
In the year 1901 John Scanlon died testate, seised of the real estate now in controversy. By the terms of his will he gave to his wife, Mary, a life use of their dwelling house and a life annuity of $ 200, which was made a charge or lien upon the real estate. This provision for the wife was expressly declared to be in lieu of dower in the estate of the testator. To his children, Charles, Edward, and Ellen, he gave legacies of $ 100 each, to his son Frank and daughter Christine $ 50 each, and to two adopted children $ 300 each. Subject to the gifts above enumerated all the residue and remainder of the testator's estate was given to his son George Scanlon, who is the principal defendant in this proceeding. On December 6, 1901, the will was duly admitted to probate, and Edward Scanlon was appointed and qualified as executor. On December 30, 1905, the executor filed a report showing an account of his doings in the matter of said estate, and making application for authority to sell one tract of the land. One paragraph of said report is in the following words: The executor's accounting seems to have been approved, and the application for the sale of the designated tract of land granted. The conveyance thus authorized was afterward executed and duly reported to the court.
In May, 1909, Mary Scanlon, the widow of the testator, died intestate. The plaintiffs herein are heirs of Mary Scanlon, and as such lay claim to an undivided interest in the land of which her husband died seised. This claim is asserted upon the theory that said Mary Scanlon was never served with notice as provided by law requiring her to elect between the provision made for her benefit in the will of her deceased husband, and the distributive share in his estate to which she was entitled by statute. It is also alleged by them that said widow never did in fact elect to take under said will, and therefore she became fully vested with a one-third interest in all the lands of which John Scanlon died seised or possessed, and this share, upon her death, passed to her children, who now hold the same as tenants in common. This claim is contested by George Scanlon, who avers that, after the death of John Scanlon and the probate of the will, he caused notice to be served on his said mother as provided by law, requesting her to elect whether to take under the will or to demand and receive her statutory share in said estate, and, having failed for more than six months to signify her purpose to claim her statutory share, she is conclusively presumed to have consented to the provisions of the will. The plaintiffs deny the giving of such notice, and aver that Mary Scanlon was at the time in question old, feeble, ignorant, and inexperienced, and, if any such notice was served or attempted to be served she was misled and imposed upon by the defendant George, and did not understand the nature and effect of the notice, and was not bound thereby. Upon hearing the evidence offered, the trial court found that the allegations of the petition had not been sustained, that George Scanlon was the sole owner of the land, and that plaintiff's prayer for relief should be denied.
The brief and argument on part of appellants are directed to two propositions: First, the evidence fails to show that the alleged notice was ever served upon Mary Scanlon; and, second, that no sufficient record proof of such service is shown. The first of these objections, if we understand counsel, is, in effect, a denial of the credibility of the witnesses who testify to such service, while the other is grounded upon the thought that, even if the witnesses testifying to the fact are found to be credible, yet the notice so shown is insufficient in form and substance, and the same has never been made of record as required by the statute, and is therefore ineffective to put the widow to an election between the benefits of the will and her statutory share. Upon the question whether the notice offered in evidence was in fact served upon Mary Scanlon in the manner claimed by the defendants and indicated by the probate records, we have examined the testimony with care, and reach a conclusion in accordance with the finding of the trial court. It is to be admitted that the effect of this evidence upon both sides is more or less confused and weakened by the apparent interest and partisanship of the witnesses, and some of it must be excluded from consideration under Code, section 4604. These are the usual concomitants of law-suits between members of the same family, and it is not always nor ordinarily an easy task for a court to determine the truth with any great degree of certainty.
In the case before us, however, after making what we deem due allowance for all circumstances affecting the credibility and weight of the competent testimony, we think there is little if any, doubt that the notice found in the probate record was in fact served as therein indicated. To hold otherwise requires us to find that Edward Scanlon as executor of his father's will committed a gross fraud upon his aged mother and upon the court to which he was answerable for the due execution of his trust, and that both he and the defendant, George Scanlon, are now engaged in bolstering up that fraud by deliberate perjury. Such imputation should not have the sanction of the court except upon clear and satisfactory showing of facts, which excludes the presumption of good faith attaching to ordinary business transactions. So far as appears from the record, the executor, Edward Scanlon, had no interest in depriving his mother of her distributive share in her husband's estate. On the contrary, it was to his apparent interest that she should refuse her consent to the will, for in that instrument his father had remembered him only to the extent of a nominal legacy while giving to George all his real estate to the extent of about four hundred acres of farm land. Men do not...
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