Volume 253 — Iowa Reports

<bold>WILLS: Joint — reciprocal — mutual.</bold> A will is joint if it is 1 the will of two or more persons in one instrument; reciprocal if it contains reciprocal gifts of property among two or more makers; but it is mutual only if executed pursuant to an agreement. <bold>WILLS: Mutual — what constitutes — evidence.</bold> Term "mutual" is 2 properly applied to wills only when there is evidence sufficient to show a binding agreement as to disposal of property of the makers in a certain way; and without such evidence, the wills may be reciprocal but they are not mutual. <bold>WILLS: Mutual — proof.</bold> A greater quantum of proof than the 3 mere execution is necessary to establish a will as contractual, and the evidence may be extrinsic or it may appear on the face of the wills, but it must be substantial. <bold>WILLS: Mutual — terms of instrument establishing.</bold> A mutual 4 will executed by husband and wife was established by the plain and unambiguous provision that ". . . each being possessed of interests in certain property which we have mutually agreed and do hereby mutually agree each in consideration of the promise and act of the other to dispose of such property in the manner hereinafter set forth, . . ." and other evidence of an agreement was not required. <bold>WILLS: Construction.</bold> Purpose of construing a will is to 5 determine the intent of testator and this should be determined from the entire will, considering each part in relation to every other part and giving effect to all provisions, unless clearly in conflict with some positive rule of law, and discarding no part of the will without sound reason. <bold>WILLS: Mutual — estate given to survivor in fee simple with</bold> 6 <bold>remainder on death of survivor given to named devisees.</bold> Where in Item I of a mutual will of husband and wife each contracted to devise his property first to the survivor, in no way limiting the estate to the survivor so that they intended a fee simple, and in Item II subject to the bequest in Item I they devised ". . . . the remainder of all<page_number>Page 1212</page_number> of the property as follows: . . . .", naming children, the surviving husband received the fee simple title to the property of his wife, and upon his death his property is then given to the persons named in Item II.