Watrous v. Watrous

• Decision Date: 26 June 1917
• Docket Number: No. 30926.,30926.
• Citation: 180 Iowa 884,163 N.W. 439
• Parties: WATROUS ET AL. v. WATROUS ET AL. (WATROUS, INTERVENER).
• Court: Iowa Supreme Court

180 Iowa 884

163 N.W. 439

WATROUS ET AL.

v.WATROUS ET AL. (WATROUS, INTERVENER).

No. 30926.

Supreme Court of Iowa.

June 26, 1917.

Appeal from District Court, Polk County; W. H. McHenry, Judge.

Suit in equity by the devisees and executors of the estate of Sophia G. Watrous, deceased, to set aside a contract entered into between C. L. Watrous, now deceased, and Edward L. Watrous, by the terms of which it is claimed that C. L. Watrous, the husband of Sophia G. Watrous, deceased, elected to take a distributive share in the estate of his wife, and to charge an annuity thereon for the benefit of E. L. Watrous and his wife, Agnes. The reasons for setting aside the contract are: (1) Mental incompetency of C. L. Watrous; (2) fraud and undue influence in securing his signature; (3) no consideration for the agreement; (4) no election on the part of C. L. Watrous to take a distributive share in his wife's estate, she leaving a will which failed to mention her husband, or to give him any part of her estate; (5) no agreement on the part of C. L. Watrous to pay Edward L. Watrous anything, and no basis for any agreement to pay him and his wife an annuity. C. L. Watrous intervened and joined with plaintiffs in the relief demanded. Other issues were tendered, which, in so far as material, will be considered during the course of the opinion. The trial court held that the contract did not bind any part of the estate left by Sophia G. Watrous, but rendered judgment against C. L. Watrous, personally, for the amount of the annuity. The trial court canceled the contract in so far as it created a charge upon the lands of which Sophia G. Watrous died seised; but rendered a judgment against C. L. Watrous, individually, for the promised annuity. Defendants and intervener appeal. Affirmed.Coffin & Rippey and Stipp, Perry, Bannister & Starzinger, all of Des Moines, for plaintiffs and intervener.

Parker, Parrish & Miller, of Des Moines, for defendants.

STEVENS, J.

Sophia G. Watrous died testate in Des Moines, Iowa, April 30, 1914. She left surviving, her husband, C. L. Watrous, who has died since the trial of this case in the court below, and four children, to wit, Philip and Charles A., plaintiffs herein; Mrs. Marion Watrous Angell, a daughter, and Edward L. Watrous, who, with his wife, Agnes, are parties defendant to this action.

The following provisions of the will of Mrs. Watrous are material to this controversy:

“Paragraph I. I direct that my just debts and funeral expenses be first paid.

Paragraph II. Having heretofore advanced to my son Edward Lacy Watrous large sums of money, I hereby devise and bequeath to him the sum of three thousand dollars to be paid in three annual installments of one thousand dollars each, and because of such advancements or loans, I hereby direct that he shall have no further share, part or parcel in my estate.

Paragraph III. I hereby give and bequeath the rest and residue of my property, personal, real and mixed, to my daughter Mrs. Marion Watrous Angell, to my son Philip Bernard Watrous, to my son Charles Albert Watrous, share and share alike.

Paragraph IV. I nominate and appoint to serve as executors of this my will without bond: Philip Bernard Watrous. Charles Albert Watrous.”

This will was executed March 12, 1914. On June 4, 1914, this will was duly admitted to probate in Polk county, and the executors named therein were duly appointed and qualified as such. The estate of the decedent is valued at something over $200,000. It will be noticed that her husband is not mentioned in the will, and that Edward was given but $3,000 of the estate; the remainder having been devised to the other three children.

The will was filed for probate May 5, 1914, and on May 30th Simon Casady, of Des Moines, was appointed special administrator. On May 29, 1914, Edward L. Watrous filed objections to the probate of the will. Over date of June 2, 1914, what purports to be a contract between C. L. Watrous and Edward L. Watrous was entered into, and this contract was filed for record with the county recorder on June 3, 1914. This contract is as follows:

“Whereas Sophia G. Watrous of said city of Des Moines, departed this life on April 30, A. D. 1914, leaving a last will and testament, which was filed in the office of the clerk of the district court of the state of Iowa, in and for Polk county, on May 5, A. D. 1914, by the terms of which she gives and bequeaths to said Edward L. Watrous the sum of three thousand ($3,000.00) dollars in cash, and divided the remainder of her property equally among her other children, viz. Marion Watrous Angell, Philip B. Watrous and Charles A. Watrous, share and share alike, and

Whereas, said Edward L. Watrous, on May 29, A. D. 1914, filed objections to the probate of said will, and a contest thereof is thereby created and now pending, and

Whereas, on May 30, A. D. 1914, Simon Casady, Esquire, of the city of Des Moines, Polk county, Iowa, was duly appointed special administrator of the estate of said Sophia G. Watrous by said Polk district court, in the cause entitled, ‘In re Estate of Sophia G. Watrous, Deceased,’ No. 8693 probate, and is now qualified and acting as such special administrator, and

Whereas, the said Charles L. Watrous, as surviving husband of said Sophia G. Watrous, under the laws of the state of Iowa, notwithstanding the provisions of said last will and testament, is the owner of an undivided one-third (1/3) interest in and to all of the property, both real, personal, and mixed, of which said Sophia G. Watrous died seised and possessed, and

Whereas, both of the parties hereto desire to prevent a further contest of said will, and to settle and adjust all differences between the surviving children of said decedent, with reference to said will and said estate, in an amicable and friendly manner:

Now therefore, it is agreed as follows, to wit:

(1) That the objections of said Edward L. Watrous to said will be forthwith withdrawn and dismissed and that so far as said Edward L. Watrous is concerned, said instrument may and shall be admitted to probate as the last will and testament of said Sophia G. Watrous, deceased, and shall never again be questioned, controverted or contested by him.

(2) That the said Charles L. Watrous agrees to and does hereby raise, create, establish and declare an annuity of eighteen hundred ($1,800.00) dollars per annum in favor of said Edward L. Watrous, payable in installments of one hundred and fifty ($150.00) dollars per month, on or before the 10th day of each month, commencing with the month of May, A. D. 1914, and continuing so long as said Edward L. Watrous shall live. In the event of the death of said Edward L. Watrous, leaving a widow him surviving, then and in that event, said annuity shall be reduced one-half, and shall be payable to such widow in monthly installments of seventy-five ($75.00) dollars each, so long as such surviving widow shall live, or until her remarriage.

Said annuity shall be payable in the city of Des Moines, Iowa, at the German Savings Bank, or at such other bank as said annuitant may direct, to the credit of said annuitant, out of and from the assets of the estate of said Sophia G. Watrous, deceased, belonging to said Charles L. Watrous, and, upon failure to pay any installment thereof, the same shall bear interest at the rate of 8 per cent. per annum from date of default, and may be enforced and collected, along with the costs and attorney's fees.

(3) In order to secure the annuity, interest and costs aforesaid, said Charles L. Watrous agrees to and does hereby make the same a charge and lien upon his individual interest, and upon the income and proceeds of sales of his interest in the estate of said Sophia G. Watrous, deceased.

Done at the city of Des Moines, Polk county, Iowa, on this the 2d day of June, A. D. 1914.

[Signed] Charles L. Watrous.

Edward L. Watrous.

In the presence of:

Joseph C. Picken.

James C. Hume.”

On November 18, 1914, Philip and Charles A. Watrous served a notice upon Charles L. Watrous, requiring him to elect as to whether he would accept and consent to the terms of the will, and on the same day Charles L. Watrous filed with the clerk of the court and had entered of record his election to accept and be bound by the terms of the will. From this we quote the following:

“I hereby elect to accept and to be bound by the terms and provisions of said will, and waive all my rights, interests and claims as surviving husband of said Sophia Glover Watrous, deceased, and hereby assign, set over, transfer, and convey any and all of my rights, titles, interests, liens and claims in and upon and to said estate absolutely and in fee simple to said Marion Watrous Angell, Philip Bernard Watrous, Charles Albert Watrous, share and share alike as provided in said will.”

This action was commenced shortly thereafter by the two sons, Philip and Charles A., against Edward L. and his wife, Agnes, to set aside and cancel the contract between the said defendants and Charles L. Watrous, for the reasons: First, that Charles L. Watrous never acquired any interest in the estate of his wife, or any such interest as that he could create a lien, or charge, thereon; that he elected to accept and be bound by the terms of her will, as by statute provided, and never acquired any interest in his wife's estate. Second, that, at the time of the making of the contract with his son Edward and his wife, Charles L. was mentally incompetent to make such a contract as is here involved. Third, that said contract was obtained from him when he was ill, and suffering from great physical and mental pain, and was under the influence of medicines, by fraud and undue influence, and that he signed the same through a mistaken belief as to the contents thereof. The relief prayed was the cancellation of the contract, and a decree quieting plaintiff's title to the property.

Defendants Edward L. and his wife, Agnes, appeared and filed answer,...