Tollefsrud's Estate, Matter of

• Decision Date: 21 February 1979
• Docket Number: 62035,Nos. 61574,s. 61574
• Citation: 275 N.W.2d 412
• Parties: In the Matter of the ESTATE of Truman H. TOLLEFSRUD, Deceased. Gerald C. TOLLEFSRUD and James Burns, Co-Executors of the Estate of Truman H. Tollefsrud, Deceased, Appellants, v. Arlene G. TOLLEFSRUD, Appellee. Arlene G. TOLLEFSRUD, Appellant and Cross-Appellee, v. Gerald C. TOLLEFSRUD and James Burns, Fiduciaries of the Estate of Truman H. Tollefsrud, Deceased, Appellees and Cross-Appellants.
• Court: Iowa Supreme Court

Page 412

275 N.W.2d 412

In the Matter of the ESTATE of Truman H. TOLLEFSRUD, Deceased.

Gerald C. TOLLEFSRUD and James Burns, Co-Executors of the Estate of Truman H. Tollefsrud, Deceased, Appellants, v. Arlene G. TOLLEFSRUD, Appellee.

Arlene G. TOLLEFSRUD, Appellant and Cross-Appellee, v. Gerald C. TOLLEFSRUD and James Burns, Fiduciaries of the Estate of Truman H. Tollefsrud, Deceased, Appellees and Cross-Appellants.

Nos. 61574, 62035.

Supreme Court of Iowa.

Feb. 21, 1979.

Donald H. Gloe, of Miller, Pearson, Gloe & Burns, Decorah, for Executors of Estate of Truman H. Tollefsrud, Deceased.

Lance P. Lorentzen, of Meyer, Zahasky & Lorentzen, Decorah, for claimant Arlene G. Tollefsrud.

Considered en banc.

REES, Justice.

We are concerned in this matter with two separate appeals, both emanating from the probate proceedings in the Estate of Truman H. Tollefsrud, deceased, pending in Winneshiek County. The widow, Arlene G. Tollefsrud, and the executors of the decedent's estate, Gerald C. Tollefsrud and James Burns, appeal from several rulings of the trial court. The executors appeal from the order of the trial court granting Arlene Tollefsrud's application for allowance to her as the surviving spouse under § 633.374, The Code. Arlene Tollefsrud appeals from the trial court's denial of her claim against the estate, based upon a $14,000 promissory note, executed by both the decedent and the claimant, to the claimant. It was secured by a mortgage upon the home of the parties which Arlene took as a surviving joint tenant. The executors cross-appeal from the court's award to the surviving spouse of one-half of the balance due on another mortgage loan and one-half of the real estate taxes due on the property which passed to Arlene as the surviving joint tenant. The executors also cross-appeal from the trial court's award to claimant of certain household goods allegedly in the decedent's estate, asserting the evidence failed to show the claimant's ownership of the items in question.

The factual development of the issues is important to a complete understanding of the conflicting claims of the parties. Therefore, the background of the case will be discussed preliminarily to the discussion of the procedural aspects.

Truman and Arlene Tollefsrud were married in March of 1971, and on July 24, 1973, they purchased a home in Decorah as joint tenants, executing a note and mortgage to a savings and loan association to obtain financing for the home. In August of the same year, they paid $14,000 to reduce the principal of the mortgage, the money coming from the proceeds of the sale of Arlene's former home, which she had owned prior to the marriage. On February 21, 1974, Truman and Arlene executed a promissory note to Arlene for $14,000 payable on demand, in acknowledgment of the August payment. The note was secured by a second mortgage on the couple's home, which was also executed by Truman and Arlene to Arlene as mortgagee. There was testimony to the effect that the purpose of the instruments was to provide security for Arlene and that she was advised by Truman's attorney to sign the documents "to release her dower interest".

In February of 1977, Truman and Arlene separated. Arlene moved from the couple's home and filed a petition for dissolution of marriage on February 13, 1977. On February 23, Truman executed a will devising no property to Arlene. While the dissolution action was pending, Truman died on July 11, 1977. By virtue of the joint tenancy seisin the home passed to Arlene; at that time the balance due on the first mortgage running to the savings and loan association was $4,599, and the promissory note running in her favor in the principal amount of $14,000 remained unpaid. Also, at the time of Truman's death, taxes on the house were due in the amount of $721, payable in installments in 1977 and 1978. Arlene, who had not lived in the house since February, made occasional use of the home on weekends and paid a portion of the utility bills incurred. She took full possession of the home in July of 1977.

On July 18, 1977, Gerald Tollefsrud and James Burns were appointed executors of Truman's estate, and the will was admitted to probate. Arlene filed an election to take against the will. On August 5 she filed an application for allowance as the surviving spouse pursuant to § 633.374. The executors filed a resistance to the application, and on December 29, 1977, the trial court, Judge Joseph C. Keefe, granted Arlene's application and awarded to her the sum of $200 per month for the period of 12 months. Later Judge Keefe in conformity with rule 3, Rules of Appellate Procedure, certified that appeal to this court should be allowed from this order, and the first appeal with which we are concerned here ensued.

From the time of separation until Truman's death, Arlene had not filed an application for temporary support and Truman had not provided any voluntary support. As of Truman's death, Arlene worked full time as a teller, earning $6100 annually. It was stipulated that she would work only part time in 1978. The probate inventory of Truman's estate shows a gross taxable estate of $122,469.

The second appeal arising from the Tollefsrud estate involves the disposition of certain claims against the estate, and property claimed by Arlene as surviving spouse. On August 5, 1977, Arlene Tollefsrud filed three claims in probate against the estate, requesting: (1) the $14,000 due on the promissory note; (2) one-half of the balance due on the first mortgage; and (3) one-half of the property taxes due at the time of decedent's death. All of the claims were resisted by the executors, and following hearing the trial court, Judge Frank D. Elwood, denied the claim based on the promissory note and allowed Arlene's other claims.

Further, on August 5, Arlene applied to set off certain personal property owned by her prior to the marriage, which application was later amended to include other items of property whose ownership was disputed, the latter items having been received by the parties as joint gifts or purchased by funds from the couple's joint checking account, allegedly by Arlene. In its order of April 19, 1978, the district court awarded certain of the disputed items to Arlene and the others to the estate. From the April 19 ruling, Arlene appealed and the executors cross-appealed, Arlene from the disallowance of her claim for the $14,000 based on the promissory note, and the executors from the allowance of the claims for contribution regarding the first mortgage, the property taxes and the court's disposition of the disputed property. Arlene does not contest the ruling of the trial court awarding certain items of the disputed property to the estate.

On the joint motion of the parties, we ordered the appeals consolidated for submission.

The following issues are presented by the appeals:

(1) Did the trial court abuse its discretion in awarding $200 per month for a period of 12 months to Arlene Tollefsrud as surviving spouse, when the claimant and the decedent were separated and an action for dissolution of marriage was pending at the time of decedent's death?

(2) Did the trial court retain jurisdiction to rule on the claims in probate after a notice of appeal had been filed from the award of the allowance to the claimant as surviving spouse?

(3) Did the trial court err in denying the claim in probate of the surviving spouse based upon the $14,000 promissory note running in her favor signed by the decedent and the claimant, and secured by a mortgage also signed by the decedent and the claimant, on real estate which later passed to the claimant as surviving joint tenant upon the death of the decedent?

(4) Did the trial court err in allowing the claims of the surviving spouse for one-half the remaining balance due on a mortgage loan and for one-half of the real estate taxes on property which the claimant later took as surviving joint tenant?

(5) When prior to the husband's death the claimant and decedent were separated and certain goods remained in the husband's possession during the period of separation, did the trial court err in awarding such items to the claimant when many of them were joint gifts or purchased from joint funds?

I. We must first determine whether the trial court abused its discretion in ordering an allowance to the surviving spouse from the assets of the estate. If there is a basis in the record for the action of the district court, we will not find an abuse of discretion. The executors contend that any award above a nominal one is excessive under these circumstances, and that the award of $200 per month constitutes an abuse of discretion. We do not agree.

It is conceded by the parties that we have held a surviving spouse to be entitled to an allowance as a matter of right despite the separation of the parties and the filing of a petition for divorce or dissolution. In Re Quinn's Estate, 243 Iowa 1271, 55 N.W.2d 175; Veeder v. Veeder, 195 Iowa 587, 192 N.W. 409. The executors' initial contention is that an award to the claimant is inconsistent with the purpose behind § 633.374: " . . . to support the surviving widow for a period of 12 months in the position occupied by herself and husband and in keeping with the manner in which the family lived prior to the husband's death." In Re the Estate of McClellan, 187 Iowa 866, 174 N.W. 691, 692 (1919). See also Matter of Estate of Allen, 239 N.W.2d 163, 170-171 (Iowa 1976). Since the parties were separated at the time of Truman's death and Arlene was not at that time receiving any support from Truman, and had not been receiving any during the five-month period of separation, the executors contend Arlene should not have been granted an allowance.

In relevant part, § 633.374, The Code, states that the surviving spouse shall be provided such funds of the estate as the court deems sufficient and reasonable "for the proper support of the surviving spouse for the...