Bostwick v. Bostwick , 52 Iowa 721 ( 1879 )

Rothrock, J.

— The plaintiff claims that he was the legal and equitable owner of one hundred and sixty acres of the land convoyed by him to his brother, and that by the will of Hiram Bostwick he was also the owner of the remaining forty acres. That the validity of the will was not disputed by the defendants, and that he was moved to convey to his brother more than one-half in value of all his worldly possessions in consideration of his love and affection lor his brother, and that said brother would remove from Montana to IoWa and reside upon the land. The claim upon its face, to say the least of it, is not reasonable. If this proposition be true it exhibits a degree of natural love and affection for kindred, and a'desire for enjoying their society, far surpassing that possessed by the generality of mankind. We are not prepared to sa,y that there may not be instances of such generosity, but they are exceedingly rare, and when rights of property are,sought to be established on such considerations, the evidence should be so convincing as to fairly overcome the improbability of the claim.

That there is no sufficient evidence upon which to grant the plaintiff the relief he seeks in this ease, we have no doubt. We cannot discuss the testimony of the witnesses in detail. All that can properly be included in the opinion ai-e the conclusions which we think should be drawn from the evidence.

. It is insisted by counsel for appellant that certain evidence which was admitted on the trial as to the condition of the mind of Hiram Bostwick at the time of his death and after the execution of his will, as well as all evidence tending lo show that the will was invalid, was incompetent because the probate of the will is conclusive, and there can be no collateral attack upon the will. The conclusive answer to this position is that this is not an attack upon the will. The defense to the action is, that defendants were about to contest the will, and that the conveyance of the land was the result of an amicable division of the assets of the estate. It is certainly proper to show there were reasonable grounds to believe that such a contest would have resulted favorably to the defendants, and that their claim was not a mere cover or threat to induce the plaintiff to divide the property. We know of no rule which would exclude evidence of this character.

Hiram Bostwick died in September, 1876. His son Samuel came from Montana to the plaintiff's residence in December of that year. In about two weeks after his arrival, all of the parties went to Council Bluffs, and the plaintiff made the conveyance which he now seeks to set aside. At the same time the plaintiff executed a bill of sale to Samuel A. Bostwick for five cows, one span of colts, one wagon, and one feather bed. He also took • from the defendant Eliza A. Bostwick a ‘1 receipt and release ' ’ by which she acknowledged the receipt of certain chattels in full satisfaction of all her right in and to the property of the estate, real and personal, and she then agreed to vacate the homestead on the first day of March* 1877. These writings were all made on the same day, and were, in fact, parts of one transaction. The next matter of record was the probate of the will on the 30th day of January, 1877, without objection from any one. That the removal of Samuel A. Bostwick from Montana to the land in question was talked of and was in contemplation by the parties, seems to be well established, but that his contemplated removal was the inducement to making the conveyance is not established by a preponderance of evidence. A strong circumstabce, tending to support the defense, is that until this conveyance was made the widow refused to accept the provision made for her in the will; that the plaintiff knew she would not take under the will is well established; that she expected some benefit from the conveyance to Samuel, seems reasonable, because the personal property which she received by the release to Daniel was much less than was conferred upon her by the will and contract with her husband.

It is urged that a successful contest of the will would only have given the widow her homestead or dower rights in the forty acres, the legal title to which was in the decedent, and the defendant Samuel his interest therein as heir, and that the plaintiff had no reason, therefore, to make a conveyance of all the other land to avoid a contest. To this it may he replied that there is no showing that the plaintiff paid any consideration for the four hundred and forty acres conveyed by the father to him in 1863; that his father held his notes for a large amount, and that they were last seen some time before his death and were not found afterwards. The homestead and some of the farm land in controversy was in the possession of the decedent at the time of his death. How much, or whether he was holding it as the tenant of the plaintiff, or as the equitable owner, does not appear. Taking these facts, with others, which might be enumerated, into consideration, we think the fair and reasonable conclusion from all the evidence is, that the conveyance in question was a settlement and adjustment of the rights of the parties in the estate in such way as appeared to them to he fair and equitable, rather than an act of generosity upon the part of the plaintiff, founded on his love and affection, for his brother.

Affirmed.