Youngberg v. Holstrom

• Decision Date: 04 April 1961
• Docket Number: No. 50097,50097
• Citation: 252 Iowa 815,108 N.W.2d 498
• Parties: Dale M. YOUNGBERG, Individually and as Trustee, Appellant, v. Lillie HOLSTROM, Individually and as Executrix of the Estate of William R. Holstrom, and Marie Louise Wittmer, Appellees, Russell S. Anderson, Ansel (Mrs. Carl) Sackrickson, Gordon Holstrom, Audrey (Mrs. William) Carlson, Mrs. Vernie Carlberg, Mrs. Donald Jones and Victor A. Holstrom, Defendants-Appellants.
• Court: Iowa Supreme Court

Page 498

108 N.W.2d 498

252 Iowa 815

Dale M. YOUNGBERG, Individually and as Trustee, Appellant, v. Lillie HOLSTROM, Individually and as Executrix of the Estate of William R. Holstrom, and Marie Louise Wittmer, Appellees Russell S. Anderson, Ansel (Mrs. Carl) Sackrickson, Gordon Holstrom, Audrey (Mrs. William) Carlson, Mrs. Vernie Carlberg, Mrs. Donald Jones and Victor A. Holstrom, Defendants-Appellants.

No. 50097.

Supreme Court of Iowa.

April 4, 1961.

Lund, Lund & Wood, Webster City, for appellant.

Doran, Doran, Doran, Erbe & Doran, Boone, for defendants-appellants.

Mahoney, Jordan, Statton & Smith, Boone, for appellees.

GARFIELD, Chief Justice.

This is a suit in equity by Dale M. Youngberg, individually and as trustee for certain defendants who joined with him, for specific performance of an alleged oral agreement between William R. Holstrom, deceased, and his predecased wife Nettie C. to make mutual wills. Following trial to the court relief was denied. Plaintiff and the defendants who joined with him have appealed.

October 16, 1942, William and Nettie executed reciprocal wills prepared for them by Mr. F. J. Lund, a Webster City attorney. The important provisions of William's will are: '1. I give, * * * all of my property * * * I may own at the time of my death, to my beloved wife, Nettie C. Holstrom, to be hers absolutely and forever, subject, however, to paragraph 3 (sic) hereof.

'2. In the event I should survive my said wife, or in the event that the said property or any part thereof should be in her hands and undisposed of by her by Will or otherwise at the time of her death * * * I desire and direct that all of my property and/or such property remaining in her hands and undisposed of at the time of her death, shall go to * * * her brother, Morris Carlson, as trustee, he to hold said property in trust for the benefit of the nieces and nephews of myself and my siad wife, with full power on his part to * * ve and distribute the said property and/or the proceeds therefrom to such of our said nieces and nephews as he my designate and in such an amount and in such a way as in his best judgment will be for the best interests of our said nieces and nephews. All of which may be done without the authority or intervention of any Court.'

This will contains no paragraph numbered 3. The reference thereto should have been to paragraph 2. The will names Nettie's nephew, plaintiff Dale M. Youngberg, alternate trustee. The defendants who joined with plaintiff in the relief asked are other nephews and nieces of William or Nettie. Nettie's will is the same as William's except for transposition of names. Plaintiff claims these wills were executed pursuant to a binding oral agreement between the makers to dispose of the property of each in a certain way, hence are mutual. For definitions and distinction between 'reciprocal' and 'mutual' wills see Father Flanagan's Boys' Home v. Turpin, Iowa, 106 N.W.2d 637, 639-40.

The cited precedent points out that under several recent Iowa decisions, in order for either maker of an alleged mutual will to be denied the right to revoke, it must appear by clear and satisfactory evidence, or on the face of the wills, they were executed pursuant to such contract provisions between the makers. We have also said the proof must be clear satisfactory and convincing. In re Estate of Ramthun, 249 Iowa 790, 799, 89 N.W.2d 337, 342.

Will and Nettie were married May 19, 1923. Nettie was then 35, Will 42. Will had been married before and divorced. The two lived together, mostly on the 160-acre farm here in controversy, until Nettie died April 20, 1943, from cancer she had had about a year. They had no children. July 1, 1947, Will married Lillie with whom he lived until his death May 3, 1959. Lillie had a daughter, Mary Louise Wittmer, by a previous marriage These two are defendants-appellees.

November 12, 1957, Will executed a later will, evidently prepared by J. E. Burnstedt, another Webster City attorney, revoking former wills. This will gives Lillie testator's personalty, three fifths of his real estate and income from the rest of it for life. Subject to these provisions, half the remainder of the estate goes to Will's brother Victor and the other half to a nephew and niece on condition. After Will's death this will was probated and Lillie was appointed executrix.

Aside from the reciprocal provisions of the first wills and their simultaneous execution, plaintiff relies for proof of the alleged oral agreement sought to be enforced on the testimony of Mr. Lund, then age 83, the attorney who prepared the wills more than 17 years before the trial. He testifies Will and Nettie came to his office together, after Will had first consulted him alone about a deed, and it was agreed the wills should be made. 'So we lit on this method of two wills with an absolutely sincere promise, I think, no both of their parts that nothing would be done to cancel those wills.' Mr. Lund says he suggested leaving the wills with the clerk of the district court, cautioned the makers they should be left there, he took them to the clerk's office for safekeeping, they remained there until after Nettie died and he then withdrew Nettie's will. It was probated and Will was made executor. The probate inventory and final report, both sworn to before Mr. Lund and apparently prepared by him, recite Nettie left no property. The firm bearing Mr. Lund's name and including his son represents plaintiff in this suit on a contingent basis although Mr. Lund is rather inactive in the firm.

Some members of the court would hold it is not shown by clear and satisfactory proof that Will and Nettie orally agreed to make irrevocable wills. However, since the conclusion reached on another phase of the case is decisive of it we do not pass on the sufficiency of such proof. Indeed we may assume, without so holding, proof of such an agreement is sufficient.

But it does not follow that plaintiff is entitled to specific performance of the agreement. The trial court held consideration for it was insufficient to call for such a decree. We think this conclusion was not an abuse of discretion and concur in it.

Will acquired the 160 acres in controversy February 1, 1909. In September, 1920, the land was mortgaged for $17,700 to secure a note Will signed at least partly for his brother in the purchase of 'bluesky' stock. In 1929 we held the mortgage invalid and it was released. North American Nat. Ins. Co. v. Holstrum, 208 Iowa 722, 217 N.W. 239, 224 N.W. 492. The farm was then mortgaged for $14,000, released in 1938, then mortgaged for $12,000, released March 29, 1946, nearly three years after Nettie died. When she died Will's bank balance was $200. When Will died 16 years later the balance in a joint account in the names of Will and Lillie was $11,422. Will also acquired, evidently at least five years after Nettie died, the residence of his parents in the town of Stratford, valued at $12,500, by paying liens and taxes against it and other obligations of the parents. Will claimed the amounts paid were not far from the value of the property. Plaintiffs sought to include this property in the present suit.

Except for some household furniture and a piano that Nettie had when she married Will (it was her first marriage) she never had property of her own. Nor, so far as appears, did she have any prospect of acquiring any, when the wills were made or thereafter, except from her husband if he should predecease her. Aside from the furniture, to which we will refer later, Will acquired nothing under Nettie's will.

In arguing consideration for the agreement was sufficient appellants seem to rely most on evidence that Nettie performed the usual duties of a farm wife, such as raising poultry, at times hogs, and had a big garden. It is true Nettie, as well as Will, worked hard and were happily married. Reliance is also placed on the fact Nettie inherited from her father $3,346, much of which was probably used to pay a note signed by her and Will for $2,500 borrowed from her brother-in-law soon after their marriage to pay for remodeling the house on the farm. $227 of this inheritance was received more than 18 years before the 1942 wills were made and the remaining $3,119 was received and the $2,500 note was paid about 15 years before then. It is also said Nettie gave up her opportunity to receive deed to the farm.

The present case is strikingly like Levis v. Hammond, 251 Iowa 567, 100 N.W.2d 638, decided 22 days after the trial court's decision here, and we think is ruled by it and the authorities there cited. The mutual wills there were made by Maud and Dave Flum. Dave survived his wife. Basis of our Levis decision, amply supported by cited authorities, is therein stated (at page 643 of 100 N.W.2d):

'Since Maud had no property when the first wills were made, no prospect of acquiring any except from her husband and none was acquired, we think it was not an abuse of discretion to deny plaintiff specific performance. Although the mutual promises may have amounted to technical consideration for the agreement, the really substantial consideration passed from Dave to Maud. Dave received no real benefit from either the agreement or Maud's will. Certainly there was great inequality of consideration moving from the two makers. Thus the agreement was not sufficiently fair and reasonable to entitle plaintiff to the relief asked.'

In Levis v. Hammond the wife inherited from her father $1,733 which by inference, and we assumed, was applied on the indebtedness against the farm in controversy. Maud also performed the usual duties of a farm wife for 44 years (38 years when the wills were made), like those Nettie performed here for 20 years. Of these facts, similar to those relied upon here, the Levis opinion states (at page 643 of 100 N.W.2d): '* * * Assuming Maud's inheritance was thus applied on the mortgage this occurred more than 23 years before the first...