I. It is manifestly impracticable to consider in detail all the matters contained in the majority opinion. Nor would any useful purpose be served by so doing. I concur in Divisions VIII and IX and, while favoring an affirmance, I agree that whatever decision we make should not bar any appropriate remedy otherwise available to plaintiff for seeking a widow's allowance.
Division I of the majority opinion briefly sketches the testimony bearing on plaintiff's contention that the "prenuptial" contract was in fact executed after the marriage was consummated. Of course, this becomes entirely unnecessary in view of Division VII. It would be inadequate, however, if that question were to be passed on by us. An analysis of the testimony would, I think, abundantly sustain the trial court's conclusion that the preponderance on that issue was in favor of defendants.
II. With the majority conclusion that the evidence is sufficient "in quality and quantity" to show revocation or modification of the antenuptial contract I cannot agree. Plaintiff's burden at this point is heavy. She relies and must rely on establishing the contents of a lost instrument by parol evidence. The rule in such case is variously stated but all concede the showing must be strong.
"* * * the evidence must be clear and positive and of such a character as to leave no reasonable doubt as to terms and conditions of the instrument." 34 Am. Jur., Lost Papers and Records, section 62.
See, also, 38 C.J., Lost Instruments, sections 71, 74; Bohnert v. Radke, 189 Wis. 203, 207 N.W. 284; Murray v. Guarantee Tr. Sav. Bk., 79 Cal. App. 69, 248 P. 1039, 1041; Bates v. Bates,247 Ala. 337, 24 So. 2d 440; Farber v. Plainfield Tr. Co., 136 N.J. Eq. 183,41 A.2d 26; Pearson v. McCallum, 26 Tenn. App. 413,173 S.W.2d 150, 158.
III. What is the record here which the majority says is sufficient in quality and quantity to show revocation or modification of the antenuptial contract? For the purpose of this inquiry I shall concede the competency of plaintiff (under the "dead man statute") as to all the testimony given by her. Any part *Page 468 that concerned a transaction or communication between her and decedent is perhaps negligible so far as concerns this issue.
Her testimony may be summarized as follows: Decedent kept the original antenuptial contract with other papers in a tin box on the top pantry shelf at home; his son Wayne and wife lived there with decedent and plaintiff; one day in October 1940, plaintiff and Wayne's wife had an argument over what would be the proper division of the proceeds from the sale of some hogs; Wayne came in and struck plaintiff, who ran to the porch where decedent sat in his wheel chair; Wayne followed and he and his father quarreled and decedent struck Wayne with a cane; decedent called for his tin box but was unable to find the contract therein; he accused Wayne of taking it, which accusation Wayne denied and cursed his father; decedent wanted Wayne to take him to Kellerton and announced his purpose of drawing another agreement so plaintiff would get "her widow's share" and so "the kids couldn't beat her out of it." (Whether this sudden decision was due to anger at Wayne or to the apparent loss of the contract — or both — is immaterial.)
Plaintiff testified Wayne at first refused but later that afternoon did take plaintiff and decedent to town. They went to Burger's store and Wayne, at decedent's request, went out and brought Mr. Turner to the store. Turner was the man who had drawn the antenuptial contract some thirteen years before. Decedent told Turner he wanted a paper drawn so plaintiff could have her widow's share and "the boys couldn't take it away from her" — that the other had been destroyed or lost. Turner went out and later returned with a paper, which he read to them and which they signed. Decedent, according to plaintiff, put this paper in his pocket and on returning to the house placed it back in the same tin box. She said she never thereafter removed it, nor did anyone else in her presence, and that the box was at all times kept on the pantry shelf and decedent, because of his physical condition, could not have gotten it without assistance. Decedent's son Albert was later appointed decedent's guardian and took possession of the box and the key. This is the substance of plaintiff's whole testimony on the subject. *Page 469
No search for the paper after decedent's death is shown and no demand for its production was made as a foundation for secondary evidence. That question, however, seems never to have been raised. Nor does the record show where and by whom the original "prenuptial" contract was produced after decedent's death. Plaintiff's petition sets it out verbatim and its continued existence seems to be assumed. Its execution is admitted in the answer.
Mr. Turner was plaintiff's witness. His memory of the later transaction is vague. There is implied criticism of him as being more friendly to the defense than to plaintiff because he remembers the earlier transaction better. Such insinuation is unjust. The phenomenon of an elderly witness being able to recall earlier events more clearly than more recent ones should not be the occasion for either suspicion or criticism.
His testimony surely throws no light on the contents of the lost instrument: "I thought then he hadn't kicked her out. She was to get a fair settlement." And again: "I remember at the time * * * I thought Mr. O'Dell was providing for this woman, but just how or what the things were that he was providing, I just don't remember."
The only other scrap of testimony about the lost document is that of plaintiff's daughter. She said that on one occasion decedent sent for her and wanted her to take him to Mount Ayr: "He was not satisfied with the situation on the place and he wanted to change his will." She was unable to accommodate him on that occasion but testified that two or three weeks later he told her "he had gone to Kellerton and had this paper drawn up so she [plaintiff] could hold her widow's share in the estate." She testified that on one of these occasions "he said that this first paper that was drawn up had disappeared and was destroyed or stolen, and he wasn't satisfied with that, that he was going to have a different paper made." She is manifestly confused in this last statement if plaintiff was right in saying they went and had the new agreement drawn the same day he missed the original contract from the box.
I have set out in substance the entire record bearing on thecontents of the lost instrument. No person testified who ever *Page 470 read it except Mr. Turner, who had no recollection of its contents except the conclusion that decedent was providing something for his wife, "but just how or what the things were * * * I just don't remember."
Plaintiff heard it read but did not testify as to its contents. Plaintiff's daughter never saw the document and merely testified to declarations of decedent made before and after it was drawn purporting to state its purpose and legal effect. The plaintiff's testimony in effect says no more than that decedent told Turner the object he wanted to accomplish, viz., to fix it so plaintiff could have her "widow's share." Whether the paper as thereafter drawn was sufficient for the purpose is, of course, a matter of legal conclusion and there is nothing shown upon which to base a conclusion.
Unquestionably some document was drawn and signed, but there is absolutely no showing of its contents — only testimony as to what was desired or directed to be done and vague declarations of decedent constituting his legal conclusion as to its contents. Such proof does not meet the requirement where a lost instrument is relied on. We are left to speculate upon what decedent meant by "widow's share" and whether it was to be in addition to or in lieu of the provision made for her in the original "prenuptial" agreement. What Turner understood was meant and what he put into the new contract is entirely undisclosed.
IV. In In re Estate of Thorman, 162 Iowa 237, 239, 144 N.W. 7, 8, Ann. Cas. 1916B, 484, this court said:
"To establish a lost will or prove its contents, the evidence must be of a very clear and satisfactory character." In that case the alleged lost instrument was sought to be established by objectors seeking to prevent the probate of an earlier will. The opinion continues: "Something more than the declarations of thetestator is essential to accomplish this. In re Will of Dunahugh, 130 Iowa, 692; In re Will of Brown, supra [143 Iowa 649, 120 N.W. 667]." (Italics supplied.)
In the cited Brown case, 143 Iowa 649, 660, 661, 120 N.W. 667, 671, it was said, concerning declarations of a decedent: *Page 471
"They were proper evidence of the mental condition of the testator and of his intention and understanding of the nature of the instrument which he was executing. They were not evidence ofthe contents of the will. In re Will of Dunahugh, supra. Whether the instrument was a will was a question to be determined from the contents. The declarations of the testator were evidence that the testator believed the instrument to be a will and that heintended it as such. Notwithstanding such belief, its provisions might as a matter of law fall short of constituting a will. The belief of the testator that the instrument was a will would not constitute it such. In a legal sense, therefore, his declaration of such belief would not be evidence that it was such." (Italics supplied.)
The rule as to the burden of proof of contents of lost or destroyed instruments is, of course, not confined to cases involving wills. A leading case was the decision in Tayloe v. Riggs, 1 Pet. (U.S.) 591, 600, 7 L. Ed. 275, 279. It involved an alleged contract for sale of corporate stock. Chief Justice Marshall said:
"When a written contract is to be proved, not by itself, but by parol testimony, no vague uncertain recollection concerning its stipulations ought to supply the place of the written instrument itself. The substance of the agreement ought to be proved satisfactorily; and if that cannot be done, the party is in the condition of every other suitor in court who makes a claim which he cannot support. When parties reduce their contract to writing, the obligations and rights of each are described, and limited by the instrument itself. The safety which is expected from them, would be much impaired, if they could be established upon uncertain and vague impressions made by a conversation antecedent to the reduction of the agreement."
The rule has been recognized in our court as being applicable in an action to recover on a destroyed promissory note. McDonald v. Jackson, 56 Iowa 643, 10 N.W. 223. And in case of a lost partnership agreement. Stewart v. Todd, 190 Iowa 283, 293, 294, 296, 298, 173 N.W. 619, 180 N.W. 146, 20 A.L.R. 1272. *Page 472
The Supreme Court of Pennsylvania announced the doctrine in an early case in which a destroyed "marriage contract" was attempted to be established to defeat the widow's right of dower. The court said:
"* * * the rule is, that the contents of a lost paper must be so proved as that the court can say, with something approximating to certainty, what it contains." And again: "* * * it may be added, that chancery will not decree specific performance,without proof of the whole contents of the instrument. Evidenceof part will not suffice, and particularly a marriage contract, where the words used by the parties * * * are so important as regards the rights of the feme." In re Gangwere's Estate, 14 Pa. 417, 426, 427, 53 Am. Dec. 554, 557, 558. (Italics supplied.)
In Scurry v. City of Seattle, 56 Wash. 1, 2, 104 P. 1129, 1130, 134 Am. St. Rep. 1092, the Washington Supreme Court said:
"To prove the contents of the lost instrument, there was only one witness, the husband of one of the appellants, and his memory of the language in which the agreement was stated, although he testified that he prepared it himself, was so indistinct as scarcely to rise to dignity of proof. While he stated with clearness his understanding of the legal effect of the instrument, he did not relate even the substance of the contents of the writing itself. In order to establish a lost instrument on behalf of a party asserting rights under it, the evidence must be clear and positive, and of such a character as to leave no reasonable doubt as to terms and conditions of the instrument. It is not enough that it be established that an instrument containing some form of limitation at some time existed, nor isit enough that some witness is able to state his understanding ofthe legal effect of the instrument; the contents of the instrument must be substantially proven, and with such clearness that the court can determine its legal effect from the language used therein." (Italics supplied.) *Page 473
The majority find that decedent "revoked or modified the prenuptial agreement." But they do not say which. The reason is clear: No one, from this record, even if decedent's own legal conclusions were to be accepted, can say whether it was intended to give plaintiff her so-called "widow's share" in addition to orin lieu of the provision made for her in the antenuptial contract. The case is to be reversed and remanded. What is the trial court to do in this respect? There is no way to determine except arbitrarily to say whether the original contract wasrevoked or modified.
V. There is no contention that the prenuptial agreement was unfair. There is nothing here to show the comparative situation of the parties. Their ages are not shown or the extent of their respective holdings. It is doubtless true that because of decedent's long illness a greater burden fell on plaintiff than would otherwise have been the case. That she carried it competently and in wifely fashion might well have suggested to decedent the propriety of a more liberal arrangement.
But this does not help us here where there is no adequate or competent showing as to what decedent actually did. He might have accomplished his purpose by will. Unfortunately, perhaps, he chose the more doubtful method by contract. Under our decision in Fisher v. Koontz, 110 Iowa 498, 502, 80 N.W. 551, a postnuptial contract of this kind is possible if based upon a good consideration. See, also, 41 C.J.S., Husband and Wife, sections 93, 109; In re Kesler's Estate, 143 Pa. 386, 22 A. 892, 13 L.R.A. 581, 24 Am. St. Rep. 557; 30 C.J., Husband and Wife, section 224; 41 C.J.S., Husband and Wife, section 110.
If by the postnuptial contract alleged here there was some reciprocal contingent provision in decedent's favor, that would probably be sufficient consideration. Possibly we should, in an appropriate case, hold that the parties might join in a voluntary modification or abandonment of the contract, since it was still executory. But if we are to do this it should be in a case in which we know what the postnuptial transaction actually was.
I have attempted to set out only the essential facts of the *Page 474 record. Plaintiff doubtless has been a faithful wife and merited whatever recognition decedent wished to extend her. But our duty here is to follow the law, uninfluenced by considerations calculated to arouse sympathy in the instant case. That must be my justification for this dissent. If it were merely a question of personal preference I would be glad to consent to a decision in plaintiff's favor.
However, for the considerations stated I would affirm the decision of the trial court.
HALE, MULRONEY, and MANTZ, JJ., join in this dissent.