terms of the will a contrary intent is mani- 2. Descent and distribution 12-Wills Where a testator devised an equal undivided one-third of his property to his wife and by a later item gave her a life estate in the remaining two-thirds, had the wife survived testator she would have obtained under the will more than the share allowed under the statute of descent, and the rule that a devisee of the same share she would have taken as heir takes by descent does not apply, and, having predeceased testator, her heirs are entitled, under Code, § 3281, to at least so much of the estate bequeathed to the predeceased wife as was in existence and available to them at the time of testator's death. Weaver, De Graff, and Preston, JJ., dissenting. creased premium rate, and they have been the property devised to him, unless from the protected in their refusal by the previous and present adjudications. They have continued to pay the old rate of $3.85 a month and no more. It does not appear that any reserve has resulted from this premium rate since 1911. This rate was adopted and acquiesced in 20 years ago under the original plan of liability to assessment for death losses only. This rate therefore is presump tively the appropriate rate for the payment of the death losses. There is no burden upon the defendants to justify this rate. The plaintiffs therefore are in no position to demand that they be protected against the payment of the old premium rate, presumptively necessary for the payment of current death losses, by the use of the present reserve to which they have not in fact contributed. What the plaintiffs are entitled to as against the other membership is, not that they may take the benefit of the reserve thus built up by the others, but that the entire membership shall respond to its pro rata share of current death losses, regardless of the additional sums which they may voluntarily pay in for the purpose of a reserve. There is also a provision in the injunction decreed enjoining the defendants from making three assessments a month and confining them to one assessment per month. As we have already indicated, the controlling consideration is not the number of assessments that may properly be made against these plaintiffs. There is no legal limitation upon the mere number. Assessments sufficient in number and amount to pay current death losses may be made. If for the purpose of such call it should become necessary hereafter to increase the number or amount of the assessments, the defendants would have such power. But the burden of justifying the increase upon such ground would be upon them. Otherwise, the presumption that the old rate was sufficient would continue and does continue to the present time for the purpose of this adjudication. We should not, however, prejudge the future necessities of the defendant association in that regard. With the modification here indicated, the some time in the year 1911. Item 2 of the decree entered below is affirmed. STEVENS, C. J., and WEAVER, PRESTON, ARTHUR, and FAVILLE, JJ., concur. In re WATENPAUGH'S WILL. (No. 34252.) Under Code, § 3281, providing if a devisee die before the testator his heirs shall inherit Appeal from District Court, Fayette County; W. J. Springer, Judge. The Action for the construction of a will. petitioners appeal. The facts are stated in the opinion. Affirmed. H. P. Hancock, of West Union, for appellants. W. J. Rogers and Ainsworth & Antes, all of West Union, for appellees. FAVILLE, J. The testator, J. E. Watenpaugh, died April 4, 1919, leaving a last will and testament dated January 30, 1901. The said testator had been twice married. By his first wife, he had two children, the appellants herein. Some time after the death of his first wife, the testator remarried, the second wife's name being Neva Watenpaugh. This marriage occurred some time prior to the execution of the testator's will. By his second wife he had three children, the appellees herein. The said Neva Watenpaugh died will of the said testator is as follows: "I give, devise and bequeath unto my beloved wife, Neva Watenpaugh, an equal undivided one-third of all the property both real and personal of which I may die seized or possessed, to have and to hold the same to her, her heirs, personal representatives and assigns forever. The provisions in this will made in behalf of my said wife are in lieu of dower and of her distributive share in my estate." Item 4 is as follows: "I give, devise and bequeath to my wife the undivided two-thirds of all the property both real and personal of which I may die seized (136 N.W.) or possessed to have and to hold for her dur- "It is well settled that, where a devise in ing her natural life, or so long as she shall a will gives the same estate to the devisee that remain my widow the income thereof to be he would take under the statute of descent if for the support of herself and family. I direct there were no will, the beneficiary in such case that the undivided two-thirds of the proceeds still takes the 'worthier title' by descent, and of the sale of my personal property after the not under the will. Rice v. Burkhardt, 130 payment of my debts shall be loaned upon real Iowa, 520; Tennant v. Smith, 173 Iowa, 264; estate mortgages which shall be a first lien and Gilpin v. Hollingsworth, 3 Md. 190, 56 Am. Dec. ample security therefor and the income shall 737, 738; Post v. Jackson, 70 Conn. 283, 39 Atl. be paid to my wife during her natural life or 151; Davidson v. Koehler, 76 Ind. 398." so long as she shall remain my widow. Upon the death of my said wife or upon her marriage then I direct that the said property shall be divided among my children living at my death share and share alike. In case any of my children die either before or after my death leaving children then the share of said child or children so dying shall be divided among their descendants." It is appellees' contention that, under the terms and provisions of said will, an undivided one-third interest in the estate of the said decedent descends to her heirs under the provisions of section 3281 of the Code. The said section is as follows: "If a devisee die before the testator, his heirs shall inherit the property devised to him, unless from the terms of the will a contrary intent is manifest." Under section 3280, the word "devise" is construed to include "bequest," and "devisee" includes "legatee," and we shall refer to the gift as a devise and the beneficiary as a devisee. The question for our consideration is whether or not, under the terms and provisions of the will, the devise to the wife, Neva Watenpaugh, was of such character that it passes to her heirs, under the terms of said section of the Code; it being established that she predeceased the testator. The appellants' contention is that the devise to the wife, Neva, was exactly the same share in the estate of the testator that she would have received under the law had no will been executed, and that because thereof she takes by descent and not by purchase, and that her heirs do not take the share devised to her, under the provisions of Code, § 3281. It is the appellants' contention that, under the terms of the will in question and under the rule above announced, the testator by the terms of his will gave to his widow exactly the share of his estate which she would have been entitled to under the statute of descent if there had been no will, and that, in the event she had survived him, she would have taken the worthier title by descent and not under the will. If it be true that, under the terms and provisions of the will, the widwould have taken under the will exactly ow of the testator, if she had survived him, the share in the estate of the testator which she would have taken under the statute had there been no will, then it follows that she would have taken such share by descent, and not by devise or purchase. Appellants contend that the instant case is controlled by our ruling in Tennant v. Smith, 173 Iowa, 264, 155 N. W. 267, and Herring v. Herring, 187 Iowa, 593, 174 N. W. 364. In Tennant v. Smith, supra, the clause under consideration was as follows: "I give and bequeath to my husband, Jonathan Duncan, such share in my estate as he is entitled to have and receive under the laws of the state of Iowa in case he should survive me." We held that under this provision of the will, the husband would take "exactly" the provision which the law would make for him, and, therefore, where he predeceased the testatrix, his heirs would not take the share so devised to him under the terms of section 3281 of the Code. In Herring v. Herring, supra, the clause in the will under consideration was as follows: "I give, and bequeath to my husband, Peter In McAllister v. McAllister, 183 Iowa, 245, Rohret, all that share or part of my estate, real, 167 N. W. 78, we said: "In the absence of such a statute, such a devise must have lapsed, and been disposed of as intestate property. This statute was enacted to obviate that result, and to substitute in place of the devisee those persons 'who would presumably have enjoyed the benefits of such devise had the devisee survived the death of the testator and died immediately afterwards.'" Our inquiry is whether or not, under the will in question, the devise lapses, or, does it pass, under the statute, to the heirs of the predeceased devisee? personal and mixed, which would go to him under the statute of distribution of this estate, if I should die intestate, neither desiring to increase nor curtail his said distributive share or interest in my estate, but intending to leave him to take just so much as the law gives to a surviving husband in cases of intestacy." We held that under this clause of the will the husband would take precisely what was given him under the statute of distribution, and, having predeceased the testatrix, there was nothing passed under the will to his heirs. It is apparent that in the Tennant Case In Herring v. Herring, 187 Iowa, 593, 174 and in the Herring Case, the bequest was exN. W. 364, we said: pressly limited to the exact amount which SUTHERLAND STATE BANK v. FURGA- the beneficiary would have received under have taken the use of the remaining two- [1, 2] For the purposes of determining whether the property bequeathed under the will passes to the heirs of the predeceased legatee, it is necessary for us to construe the will in its entirety and to construe it as though the predeceased devisee had in fact survived the testator. We are to determine just what the legatee would have received had she been living at the time of the testator's death, and in order to do so we must read the will in its entirety. When this is done, we find that she would have obtained under the will more than the share allowed her under the statute of descent, for, in addition to the one-third provided by law, she would have received the estate created in the remaining two-thirds of the testator's property. The widow, had she survived, would therefore have received a larger estate than that given her by the statute of descent. The will gave her more than the law wou'd have given her, and, had she survived the testator, she would have taken more under the will than she could have taken under the statute. That being true, the rule invoked that she would take under the law as the worthier title does not apply, and the heirs of the predeceased legatee are entitled, under section 3281 of the Code, to at least so much of the entire estate bequeathed to the predeceased legatee as was in existence and available to them at the time of the death of the testator. We are of the opinion that the decree of the lower court was correct in awarding to the heirs of Neva Watenpaugh an undivided one-third of the estate of the testator, and the decree of the district court must therefore be affirmed. STEVENS, C. J., and EVANS and ARTHUR, JJ., concur. (Supreme Court of Iowa. Jan. 20, 1922.) Deeds 211 (4)-Evidence Insufficient to show execution was induced by threats, coercion, or undue influence. Where a woman made a will giving land to a granddaughter subject to a legacy to another granddaughter, and the granddaughter given the legacy and her husband upon learning thereof protested, and at a family conference at which both granddaughters and their husbands, and a daughter and a son, both of whom were experienced in business, were present, she executed a deed conveying the land to the two granddaughters, evidence held insufficient to execute the deed by any threat, coercion, or warrant a finding that she was persuaded to undue influence. 2. Deeds 72(4)-Granddaughter and husband could appeal to grantor's sense of justice without being chargeable with undue influence. Where a granddaughter and her husband discovered that her grandmother had made a will giving property to another granddaughter, subject only to a legacy in her favor, they had a right to make inquiry of the grandmother in regard to the matter and to reasonably appeal to her sense of justice and request her to change such disposition of her property, without being chargeable with undue influence with respect to a deed then executed by her to the two granddaughters. 3. Appeal and error 893 (2)-Questions of fact in suit to cancel deed determined de novo. In a suit in equity to cancel a deed for mental incapacity, undue influence, and lack of delivery, the Supreme Court must determine the questions of fact de novo. 4. Deeds 211 (4)-Proof of mental incapacity and undue influence must be clear and convincing. In an action to set aside a deed for men tal incapacity and undue influence, the proof must be clear, convincing, and satisfactory that the instrument is not the free and voluntary act of a person possessed of sufficient mentality to have executed it intelligently. 5. Deeds 196 (3)-Burden on party suing for cancellation to establish mental incapacity and undue influence. In an action to set aside a deed, the burden of proof is on plaintiff to prove the undue influence and mental incapacity alleged by him. 6. Deeds 72(1) -Execution at suggestion or request of grantee does not establish undue Influence. That a deed is executed at the suggestion or request of the grantee will not establish undue influence unless the freedom of will of the WEAVER, DE GRAFF, and PRESTON, grantor is overcome and the will of another JJ., dissent. substituted therefor. (186 N.W.) 7. Deeds 68(3)-Mental capacity may exist though grantor has not capacity to do business generally. Mental capacity to dispose of property by deed may exist even though there be no longer mental or physical capacity to do business generally because of old age and the consequent impairment of physical powers, forgetfulness, etc. 8. Deeds 211(I)-Evidence insufficient to show mental incapacity. In a suit to cancel a deed from plaintiff's ward, a woman 93 years old, to her granddaughters, evidence held insufficient to show mental incapacity. moved from the farm. Jennie continued to live with the old people thereafter, and was subsequently married, and has continued to reside on the farm ever since. The old gentleman died in 1905, and after his death the widow left the farm and went to live with some of her children, residing part of the time with a son Asa, and at the time of the transactions involved in this suit, was living with her daughter Mrs. Flinders. On March 10, 1898, Cyrenus Bailey executed a deed to the quarter section of land in controversy to his wife, Jane A. Bailey. This deed was not recorded until the 25th day of August, 1919. On October 13, 1904, Appeal from District Court, Cherokee Jane A. Bailey made a will by the terms of County; C. C. Bradley, Judge. Suit in equity for cancellation of a deed made by Jane A. Bailey to Jennie E. McCulla and Maud C. Furgason, appellants, of a quarter section of land, on the grounds that the grantor was mentally incompetent to execute the deed, that the deed was secured by undue influence, and that the deed The facts appear in was never delivered. the opinion. Decree was entered canceling the deed. The grantees in the deed appeal. which she provided for the payment of $1,000 to the granddaughter Maud Furgason, and made the payment of the same a lien upon the real estate in controversy. She deVised the said real estate to Jennie McCulla, subject to the dower interest of her husband in the event that he should survive her. Dur. ing the summer of 1919 there were several conversations between Mr. and Mrs. Furgason and Mr. and Mrs. McCulla in regard to the property. McCulla claimed to Furgason that he could hold the property by adverse Reversed. possession, and Furgason learned through Molyneux, Maher & Meloy, of Cherokee, Asa Bailey, son of Cyrenus Bailey, that a for appellants. will had been made by Mrs. Bailey by the Walter McCulla and Herrick & Herrick, terms of which Jennie was to get the farm all of Cherokee, for appellee. FAVILLE, J. [1] The questions presented for our determination are largely questions of fact. The law in cases of this char and Maud was to get $1,000. On the 30th day of August, 1919, Furgason and his wife went to Sutherland for the purpose of seeing Mrs. Bailey. At that time the old lady was living there with her daughter Mrs. acter is well established. We are confront- Flinders. Furgason informed them that he ed with the not unusual situation where an attempt is made to set aside a deed executed and his wife came for the purpose of talkby an elderly person on the familiar twofold ing over affairs in regard to the Bailey propground of an alleged want of mental capac-erty, and Mrs. Flinders said that she would rather that the matter would not be disity to execute the deed and a claim of uncussed until the brother Asa could get there. due influence. The action is brought by a guardian. The record discloses that Cyren- She immediately called Asa over the teleus Bailey and his wife, Jane A. Bailey, lived phone, and he came down to the Flinders house. This was in the forenoon. Furgaon a farm in Cherokee county, Iowa, and were the parents of seven children. One of son and his wife went home with Asa to dinner. There was little conversation in the the Bailey daughters, Emma, married a man by the name of Hinds and lived in the state presence of Mrs. Bailey in the forenoon. In of Texas. Emma Hinds died, leaving sur-the afternoon the two Furgasons and Asa viving her two daughters, who continued for Bailey returned to the Flinders home and in some time to live with their father, but final- the meantime Asa had telephoned to the ly, at the solicitation of the elder Bailey, bank for the cashier, Mr. Bark, and requestcame to Cherokee county, Iowa, to live with ed him to come to the Flinders' home. Jentheir grandparents on the farm in question. nie McCulla and her husband were also sent These daughters have each since married for, and they came to the conference. and are the defendants Maud C. Furgason was at this conference that the deed in and Jennie E. McCulla. While living on the question was executed. Various parties who place with their grandparents, Jennie did were present at the time were witnesses upmost of the housework. Maud taught on the trial. school a portion of the time and helped with the housework when not teaching, and when she was teaching she paid her grandmother for her board and Jennie was paid $2 a week for her services. Maud married in 1900 and It Mrs. Flinders, a witness for the plaintiff, testified in regard to the transaction. She stated that Maud said to Mrs. Bailey: "Now, Grandmother, is it right for Jennie to have that farm? It is your farm. Is it right For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 202 186 NORTHWESTERN REPORTER for Jennie to have the farm and me just $1,000?" This statement was not made in the pres ence of Mrs. Bailey, and there is no evidence that she ever heard of it. She testified that she did not remember The witness Shumway, who was in no way what her mother said in response to this. She also testified that Mr. Furgason was in-interested in the transaction and was called sisting that Asa Bailey and the banker Mr. in as a witness to the deed, testified in regard Bark should settle it; that he wanted it to what took place at the time. He said: settled. With regard to the threat of a lawsuit, Mrs. Flinders testified, referring to Mr. Furgason: "He said that afternoon that if it wasn't set tled that he was going to bring an action against Asa to find out where Father's property had gone. I do not know whether it was in her presence, right in front of her, but she was there." The banker Jordan was called as a witness by the plaintiff, and testified that when he went to the house on the day in question Mrs. Bailey spoke to him when he went in. He He did not remember what she said. said: "I don't remember who finally stated what was wanted of me that day. I understood it was her request the deed was to be drawn. I don't remember whether Mr. Furgason or Mrs. Furgason told me the object of the visit. "Q. Did Mrs. Bailey make any statement when you asked her what you were there for that you would have to inquire of some one A. Someelse, or any words to that effect? thing was said to that effect, but I don't remember exactly what it was. "Q. Well, approximately, as near as you can remember, what was said? A. It seems to me it was something on this order, 'You will have to ask the others what was wanted,' but I don't think those were exactly the words, but something on that line." This witness further testified: "I don't remember that Maud Furgason spoke up and said, 'Grandma wants to deed this place to Jennie and me, each half,' or something like that, and that I then said to her, 'Is that I am quite sure I right, Grandma.' Yes; I did read the deed to her, of course. took her acknowledgment, and I was very particular to ask her if it was her own voluntary act and deed. She said 'Yes.' * I was not at the house over half an hour on the day the deed was signed. During that period I did not hear Lew Furgason or his wife, Maud Furgason, make any threats to Grandma Bailey as to what they would do if she didn't give them the deed to the land. I did not hear them make any threats about lawsuits to any one else there in the house, nor I did not hear them make any threats in her presence as to a suit against Asa Bailey or Mrs. Flinders. Nothing of a threatening nature was said in my presence in the house, either before or after she signed that deed." Furgason stated to Bark and Asa Bailey outside the house: I am "The first I remember of the conversation And she turned him off some there Mr. Jordan says to Mrs. Bailey, 'Did you send for me?' way, joshed with him a little, and I think he asked her the second time if she had sent for him and what she wanted. He asked her this question, and she put him off the first time, and the second time I think she made the remark she didn't know and Mrs. Flinders says, 'Yes; you do, Mother; he was called here to execute a deed wherein you convey your home property down there where you used to live, and the girls and the children lived with you, to these girls, Maud and Jennie, and you are to sign and execute a deed conveying this property to these girls equally;' and then she says, 'Lew, you better state your case;' and Lew said he didn't feel like doing that. Mrs. Flinders said this, she just said, 'Yes; you do, Mother; it is It was to draw up a deed for you to sign.' Mrs. Flinders said to Mr. Furgason, 'You had better state your case.' I think Mr. Furgason said he thought it would be more in place for one of the girls to do that, and Maud, his wife, started in, and she was confused a little, and Mrs. Flinders spoke up and she says, Jennie, maybe you better do that; you are a better talker;' and then Jennie stated the case Jennie said she supposed she very clearly. were both girls at the Bailey home on the farm, might as well go back to the time that they and she said she came there to make their home it was the general talk of the old folks, and there, and after they had been there for a time among all of them, that in time that place was to be divided equally among the girls; she said that was the understanding, and she thought that was Maud's understanding. She said she never knew anything different till she took a trip out West and an aunt out there says to her, 'What has happened?' or 'What is the reason that Maud doesn't get an equal share with you?' and she said then, she says, "That was as much a surprise as it could be for Maud, because I supposed all the time that it was to be divided and divided equally, because I know of no reason why it should not be,' and She she said when she got back, 'I didn't know just how, but I felt it my duty to Maud to.' said this in the presence of Jane A. Bailey. She said further, 'We were mere children; we didn't understand anything about business; and I says that we should look after her interests and protect her rights; that was a duty in that respect; and that is why we are situated as we are to-day.' She said, 'As I understand it, under the present arrangement, I am the beneficiary of that; if it goes according to my desires and my wishes, it should be divided equalMaud should share and share alike with me.' ly; I don't want any other arrangement but that It was Jennie said this. And she says, 'Ben isn't quite satisfied,' but she said she looked for the harmony of the family, and that had some weight with her, and the justice and equi |