Vilter v. Myers

• Decision Date: 17 September 1963
• Docket Number: No. 51013,51013
• Citation: 255 Iowa 818,123 N.W.2d 334
• Parties: Kathryn Sue VILTER, Jane Potter Buchanan as Guardian of the Person and Property of Sandra Dianne Potter Buchanan, a minor, Appellees, v. Anna A. MYERS, as Executrix and as Trustee under the Last Will and Testament of Paul D. Potter, Deceased, Richard C. Potter, Mrs. Richard C. Potter, Richard C. Potter and Mrs. Richard C. Potter as Trustees for their Children, Marcia Gail Potter, Phillip Gordon Potter, and David Paul Potter, Appellants.
• Court: Iowa Supreme Court

Page 334

123 N.W.2d 334

255 Iowa 818

Kathryn Sue VILTER, Jane Potter Buchanan as Guardian of the Person and Property of Sandra Dianne Potter Buchanan, a minor, Appellees, v. Anna A. MYERS, as Executrix and as Trustee under the Last Will and Testament of Paul D. Potter, Deceased, Richard C. Potter, Mrs. Richard C. Potter, Richard C. Potter and Mrs. Richard C. Potter as Trustees for their Children, Marcia Gail Potter, Phillip Gordon Potter, and David Paul Potter, Appellants.

No. 51013.

Supreme Court of Iowa.

Sept. 17, 1963.

Rehearing Denied Nov. 12, 1963.

Hemingway & Hemingway, Webster City, for appellants.

Karr & Karr, Webster City, for appellees.

THORNTON, Justice.

The principal question presented is the sufficiency of the evidence of the making and terms of the contract to execute mutual wills. Able counsel for both sides recognize this and so present the case. That the evidence of such an oral contract must be clear and convincing is well established. Youngberg v. Holstrom, 252 Iowa 815, 108 N.W.2d 498; Father Flanagan's Boys' Home v. Turpin, 252 Iowa 603, 106 N.W.2d 637; Barron v. Pigman, 250 Iowa 968, 95 N.W.2d 726; and In re Estate of Ramthun, 249 Iowa 790, 799, 89 N.W.2d 337, 342. Since In re Estate of Lenders, 247 Iowa 1205, 78 N.W.2d 536, a greater quantum of proof than the mere execution of the wills is necessary to establish the wills as contractual. The proof may be by extrinsic evidence or it may appear on the face of the wills, or both. In re Estate of Logan, 253 Iowa 1211, 1216, 115 N.W.2d 701, 704, and citations. The general principles of equity which control specific performance apply to a contract to execute a will. Levis v. Hammond, 251 Iowa 567, 576, 100 N.W.2d 638. To entitle the promisee to relief in equity such as specific performance the contract must be clear and definite. 4 Page on Wills, Lifetime Ed., § 1739. The contract must be so certain and definite as to leave nothing to conjecture or to be supplied by the court. Hunter Investment, Inc. v. Divine Engineering, Inc., 248 Iowa 1109, 1121, 83 N.W.2d 921.

One problem not heretofore squarely presented or passed on by us, is the will of the survivor, Paul, alleged to have been executed in conjunction with Laura's in 1938, was lost and there was no proof of its contents. At this point defendants contend the same proof is necessary as to prove a lost will, i. e., (1) its due execution; (2) its loss; (3) the presumption of its intentional destruction with intent to revoke has been rebutted; and (4) its contents. In re Estate of Givens, 254 Iowa ----, 119 N.W.2d 191, 193; In re Estate of Lawrence, 251 Iowa 305, 309, 100 N.W.2d 645, 649; and citations. We agree this is the proper test except that (3) above should be determined as of the date of the death of the first to die.

Our review in equity is de novo. Rule 334, Rules of Civil Procedure, 58 I.C.A. It is our duty to consider and determine the case anew. Snater v. Walters, 250 Iowa 1189, 98 N.W.2d 302.

Because of the volume of evidence in the record, much of which is wholly immaterial and actually has more bearing on another action between these parties, after a brief statement of facts we will confine ourselves to a consideration of the particular matters of evidence as considered by the parties.

Laura and Paul Potter were married in 1913. They had two children, Kathryn Sue Vilter, 47 at time of trial, called Sue by the family, and Robert O. Potter. Robert lost his life in World War II in November, 1944; one daughter, Sandra, survives him. Sue and Sandra, by her guardian, are plaintiffs here. Defendants are the executor and trustee and beneficiaries of the will of Paul executed in 1959. Laura died October 18, 1945, Paul January 18, 1960. Paul had a doctorate in chemistry and from 1913 to late in 1938 he was employed as a chemist by the same firm in Chicago. He had a salary of $4,800 per year at least during the last 12 to 14 years. In 1923 Laura received an inheritance of $24,000 from her grandmother. June 10, 1938, Laura executed her will. There is evidence to sustain a finding that some time later in the year 1938 Paul also executed a will. This will is lost. During this time Laura and Paul lived in the Chicago area and in 1938 owned a home in Winnetka, Illinois. July 18, 1938, Laura and Paul purchased a 160 acre farm in Hamilton County taking title as tenants in common. After Paul's employment was terminated they moved to Webster City. At this time they owned some stocks in joint tenancy. June 8, 1940, Laura's mother, Nellie L. Crauel, conveyed a home in Webster City to Laura and Paul as tenants in common. December 31, 1941, Laura and Paul purchased a 240 acre farm taking title as tenants in common. December 29, 1942, they deeded 80 acres of this farm to Robert. During the years after the execution of Laura's will until her death there is evidence by Sue that Paul tried to persuade Laura to change her will. Some 18 months before her death Laura became afflicted with an incurable cancer.

August 2, 1944, Robert and his wife executed Exhibit 5 in the record. This instrument is in the nature of a family settlement.

November 29, 1944, Laura and Paul by instrument called a joint tenancy agreement changed their title to the home from tenants in common to joint tenants. This instrument was recorded November 29, 1944.

December 11, 1944, Laura and Paul executed a joint tenancy agreement to the 160 acre farm purchased in 1938 changing their title from tenants in common to a limited joint tenancy, limiting the ownership of the survivor of them in effect to that of a life tenant with the remainder to Sue or her heirs. On the same date a similar instrument was executed by Laura and Paul to the 160 acre farm purchased in 1941 with the remainder to Robert or his heirs. Both of these instruments were recorded December 5, 1945, after Laura's death.

Sue testified she received a number of letters from her mother during the year 1943 or 1944 and one of them contained a document wherein her mother and father agreed to will their property to each other and then to the children.

January 16, 1946, Paul commenced a short form probate proceedings to remove tax liens on joint property held by Laura.

After Laura's death, her mother, Mrs. Crauel, lived in the home with Paul. She died in 1950, Paul was co-executor with Sue of her estate and trustee for Sandra and Sue's son under Mrs. Crauel's will. This lady was wealthy and the principal source of the funds with which Laura and Paul made initial payments on the two farms held by them as joint tenants.

Paul died by his own hand January 16, 1960. After the withdrawal of objections to the probate of his 1959 will by plaintiffs here the will was admitted to probate December 5, 1960. Plaintiffs have had Laura's will admitted to probate March 7, 1961, after objections filed by defendants here were dismissed on motion.

In this action the trial court entered a decree awarding all of the property, real and personal, owned by Paul at his death to plaintiffs Sue and Sandra.

I. Defendants' first contention is the proof is insufficient. Plaintiffs in argument point to six important elements of their proof: (1) the 1923 oral agreement; (2) 1938 wills of Laura and Paul; (3) Exhibit 5; (4) joint tenancy agreements; (5) 1944 agreement of Laura and Paul as testified to by Sue; and (6) Paul's conduct.

First we will examine the evidence on the 1938 wills and the 1944 agreement as testified to by Sue. All other is circumstantial.

Laura's 1938 will, her only one, so far as this record shows, was proved by the testimony of one of the witnesses thereto taken by deposition. The witness's testimony shows the will was executed in a bank in Wilmette, Illinois, where Laura was a customer. There is no other testimony as to surrounding circumstances. The will in pertinent part provides after the payment of debts, Paul shall have the home and furnishings in Winnetka outright; Sue and Robert were given jewels, share and share alike; and

'The entire residue of my property of every kind whatsoever which I now have, may die possessed of or may be entitled to, I give in trust to Paul D. Potter as Trustee for himself, for Kathryn Sue Vilter, her heirs or assigns, and for Robert Owen Potter, his heirs or assigns, to be used, distributed and assigned as hereinafter stated.'

(Sue and Robert were appointed successor trustees.)

'As trustee's compensation I authorize Paul D. Potter to pay to himself all of the income from all of the property of which I am possessed at the time of this writing or may acquire by means other than by gift or inheritance and have not above provided for so long as he shall live. Further, if for any reason he cannot serve as Trustee, I order the payment of all such income to him so long as he shall live by his successor trustees or trustee.'

After Paul's death provision was made for the distribution to Sue and Robert or their direct heirs of 'all of the property which I hold at the time of this writing subject to gains to losses as the case may be or may acquire by means other than by gift or inheritance * * *' and in a succeeding paragraph the trustee was required to pay one-half the income to Sue from 'all of the property I may hereafter acquire by gift or inheritance' until March 2, 1949, and then to assign her one-half of all such property; the same was provided for Robert until January 15, 1954. The following paragraph required the trustee to be accountable to the Probate Court and make annual reports:

'For good and sufficient reason I do hereby contract and agree that any future effort on my part to modify or invalidate this will in so far as it affects the property that I have at the time of this writing, subject to gains or losses, as the case may be, or my husband, Paul D. Potter, in respect to his right to serve as administrator and trustee or in respect to his right to the income from the property that I now have, subject to gains or...