I respectfully dissent.
The claims are based on promissory notes signed by decedent, said to have been given for money borrowed by him. There is *Page 348 no suggestion that the claims are unjust. There can be little doubt that decedent wanted and intended these claims to be paid out of this life-insurance money and believed he had arranged for such payment. Decedent's intention to waive the benefit of the exemption provided by sections 8776 and 11919, Code, 1939, clearly appears — or at least the jury could have so found. Further, I think there is substantial evidence for submission to the jury "of an agreement or assignment" under section 8776, or of a "special contract or arrangement," under section 11919, by which the insurance should be applied to this indebtedness. Our decisions recognize that such an agreement may be by parol. In re Estate of Paul, 231 Iowa 1078, 1080, 3 N.W.2d 186, 187.
Claimants were handicapped in proving their case. The lips of the contracting parties were sealed, decedent's by death and claimants' by the dead man statute, Code section 11257. Of course, this did not relieve claimants from proving their case, but it is a proper matter to consider, especially where, as here, it cannot be contended the claims are fictitious or even unjust. See Soderland v. Graeber, 190 Iowa 765, 775, 180 N.W. 745.
The majority apparently assumes, as did the trial court, that there must be direct evidence of an agreement regarding the insurance. But an agreement, like any other fact in issue, can be established by circumstantial evidence. In re Estate of Oldfield (Gaynor, J.), 175 Iowa 118, 122, 156 N.W. 977, L.R.A. 1916D, 1260, Ann. Cas. 1917D, 1067; Feltes v. Tobin (Ladd, C.J.),187 Iowa 11, 22, 171 N.W. 739; 32 C.J.S. 1099, section 1039; 20 Am.Jur. 1041, 1042, section 1189.
Since the claims were tried to a jury, they could be proven by only a preponderance of the evidence. Clear, satisfactory, and convincing proof that is required in equity to establish an oral contract of a decedent was not necessary. In re Estate of Dolmage (Faville, J.), 204 Iowa 231, 213 N.W. 380, and cases cited; In re Estate of Newson (Morling, J.), 206 Iowa 514, 524, 219 N.W. 305; In re Estate of Stratman, 231 Iowa 480, 487, 1 N.W.2d 636, 642.
In passing on the sufficiency of the evidence, I think the testimony of W.N. Mintonye, which the majority does not mention, is properly to be considered on the Brunt claim as well *Page 349 as the McCaffreys' claims. I see no basis for confining its consideration to the McCaffreys' claims as the trial court ruled. No question is raised as to the competency of this witness. He testified that about three years before, in the fall, he overheard this talk between his wife, Ida Mae, decedent's niece, and decedent, in the witness' home:
"My wife was ill at the time and Wig Harding came to see her * * * he say, you know Mrs. Brunt has been — Minnie he called her — has been worrying so much about the bill that I owe her that I have made arrangements and agreed to pay her out of that insurance providing that I die before I get it paid, because I want Mrs. Brunt to be paid. * * * Q. Did he state who he had made those arrangements with? A. With Minnie Brunt."
Ida Mae Mintonye testified that claimant Minnie Brunt was present three days before decedent's death at the conversation which the witness related and to which the majority refers.
As stated by the majority, Minnie Brunt testified that on July 10, 1941, decedent said in her presence, "that he had these debts to pay, and he says — with the McCaffreys. * * * And he says, I have made an agreement and arrangements that if I don't get their debt paid while I am here on earth that I will pay it out of my insurance, which he was carrying."
Will Walters testified that decedent told him in September or October 1941, "you know that I owe Minnie [Brunt]? and I says, yes. He says, I am going to pay her every dollar I owe her, and I have arranged and agreed to pay with my insurance."
Anna McCaffrey testified that in September 1941, decedent "remarked to me about Minnie Brunt being worried about the debt he owed her. And he said she had no reason to worry, that when she renewed the note that she renewed it on the strength of that insurance policy which he expected her to be paid out of. * * * Well, he said that he had made an arrangement with her. Q. With who? A. With Minnie Brunt. Q. To what effect? A. To have this — or this note paid out of this insurance policy if he did not get it paid before his death."
Carl McCaffrey testified that subsequent to July 10, 1941, decedent said in his presence: *Page 350
"I have arranged and made an agreement if I should die before I get her [Minnie Brunt's] debt paid off that I have got insurance money to pay it afterwards, after my death; I have got it fixed in that way."
I think the foregoing, together with other evidence clearly showing decedent's intent that these debts be paid from this insurance money, was sufficient to warrant a finding that decedent had made a binding agreement to that effect.
I do not agree that the record is similar to that in In re Estate of Donaldson, 126 Iowa 174, 101 N.W. 870, and In re Estate of Hazeldine, 225 Iowa 369, 280 N.W. 568. The Hazeldine case was in equity, as was In re Estate of Paul, 231 Iowa 1078,3 N.W.2d 186. As stated, in an equity case of this kind the proof must be clear, satisfactory, and convincing. The Donaldson case was tried to the court without a jury and the extent of the evidence is that "deceased promised [claimant] to take out a life insurance policy payable to his estate in the belief that, if he died, the avails thereof could be used for the payment of his debts. He made no special contract or agreement that it should be so used, but both parties relied upon a mistaken view of the law." Pages 178, 179 of 126 Iowa, page 871 of 101 N.W.
In the Hazeldine case there was no evidence from any competent witness of any agreement. The only testimony, even from the incompetent witness, is that decedent told claimant and the witness "that he carried insurance policies and that they were the beneficiaries." Page 382 of 225 Iowa, page 575 of 280 N.W.
I think the case for claimants here is almost if not quite as strong as it was in the Paul case, supra, where we held, reversing the trial court, that an oral agreement was shown by clear, satisfactory, and convincing evidence that the insurance should inure to the benefit of creditors of insured decedent.
I would reverse.
*Page 351BLISS, J., joins in this dissent.