74 Neb. 444 | Neb. | 1905
This action involves the right of certain heirs of William W. Wilson, deceased, in a partition proceeding, to participate in the distribution of the partitioned estate in proportion to their respective shares, without diminution on account of the financial transactions of such heirs with the/ deceased in his lifetime. William W. Wilson died intes' tate in Lancaster county on the 20th day of March, 1901. His surviving heirs were Joseph R. Wilson, Carrie W. Covert, Roxana Wilson, Mary A. Wilson, Carrie C. Slater, Katharine Saum Howard, Jay Saum, Jennie L. Shuster, D. Banks Wilson, William W. Cook, Nannie W. Fiscus, Zachariah T. Wilson, Burt Wilson, Minnie Wilson Royer, Foss Wilson and Gladys Glenn. During the lifetime of the deceased he delivered to Nannie W. Fiscus the sum of $5,000, and she, joining with her husband, executed and de-t livered to him a certain mortgage bond in the sum of $10,000, conditioned “for the payment of three hundred’ dollars ($300) on the 24th day of May, 1894, and the like sum of three hundred dollars ($300) on the 24th day of May of each and every year thereafter following, during the term of said Wilson’s natural life; the said annual sum of three hundred dollars ($300) each being legal interest at the rate of six per cent, on five thousand-dollars ($5,000) this day advanced to Nannie W. Fiscus by said Wilson; and, in case of default of said first parties hereto in the payment of any one of the said instalments of interest for the period of thirty days after said instalments of interest become due, then in that event the whole amount of said principal sum of five thousand dollars ($5,000), together with the interest thereon, shall become due and pay
They also at the same time del leered what might be
The interest payments on this bond were made by Nannie W. Fiscus and her husband up to and including the payment due in May, 1899, and no payments were there-; after made by them. On the 24th day of July, 1894, the deceased executed a formal release of the mortgage bond given by Nannie W. Fiscus and her husand. This release he had in his possession until some time in 1898, when it was delivered to S. B. Donaldson, an attorney at law at
Concerning the custody of this release, Mr. Donaldson testified: “That he met the deceased at the home of Nannie W. Fiscus, and, after being introduced to Mr. Wilson, Wilson said: ‘I want to consult you about a mortgage which I hold against Mrs. Nannie Fiscus, covering this property here.’ He said to me that he understood that some question might be raised as to the satisfaction of the same, notwithstanding the terms of the mortgage providing that it should be canceled and satisfied at his death. He said he had given Mrs. Fiscus this money, and that he did not wish her to have any difficulty whatever with it when he was gone, and that the property was to be entirely clear of the mortgage at the time of his death; that he had a paper prepared which he thought would satisfy the record in such a way as to make her title clear and unincumbered so far as his mortgage was concerned. He then proposed to leave said paper with me. In case of his death, I should file it or have it filed in the recorder’s office of Allegheny county. He told me to take the paper with me and examine it carefully, and, if I' thought it would not make such a record as Avould fully discharge the mortgage, to prepare another paper that would give her a record clear of said mortgage and that would not likely be questioned. * * * He said: T have given her this money, I want the record of her mortgage to be clear when I am gone.’ * * * Mr. Wilson said that he intended only to collect interest on the money so long as he
On July 7, 1898, the deceased wrote a letter to Mrs. Fiscus from Lincoln, Nebraska, in which he said: “Has Mr. Donaldson given you his opinion of the matter and where? If so, tell me what he said, and if he wants me to execute some new papers. I am anxious to have it done right, as I want you to have no further trouble about it when I am gone the way of all flesh; so ask him to give you his opinion and not me. I will in all probability write Mr. Donaldson and try and fix things that will last.” In a later letter he said: “Was glad to know that Mr. Donaldson thought the release I gave him to hold was sufficient; but if at any time he should alter his opinion, let me know it, and we will make new> writings that will be good, as I am very anxious to make it beyond a doubt.”
On the 28th day of April, 1894, Katharine Saum Howard, then Katharine Saum, received from the deceased the sum of $8,000, and at that time executed and delivered to the deceased a mortgage on certain real estate in Iowa. The conditions of the mortgage were as follows: “Provided, always,'that these presents are upon the express condition that if the said Katharine Saum or her heirs, executors or administrators, shall pay or cause to be paid to the said W. W. Wilson, during the full term of his natural life, the sum of one hundred and eighty dollars ($180) annually — said payments shall commence the first day of May, 1895, and annually on the first day of May thereafter during his life; said sum being interest at the rate of six (6) per cent, per annum upon the aforesaid sum of three thousand dollars ($3,000)’ — and also pay six
On July 10, 1900, the deceased wrote Mrs. Howard from Lincoln, addressing her as follows: “Dear Katharine : I wrote you yesterday and forgot to mention about that release I left with Mr. Harrah. You do not really need a note from Mr. H., but you had better preserve his letter to you acknowledging the note of the release left by me. That is all you need, but I took a receipt from him as it is necessary in case it should be put on record without my consent. I think you are perfectly safe, as you have his letter explaining you that he has it, and that is as good as a formal receipt, so don’t worry any more over that. And if anything happens to me, you know where it is, and all
On the 1st day of June, 1894, Wilson executed a formal release of the Katharine Saum mortgage, and on June 27, 1900, delivered the release to A. M. Harrah, an attorney at law at Newton, Iowa, taking Mr. Harrah’s receipt, as follows: “Newton, Iowa, June 27, 1900. Received of W. W. Wilson a release of mortgage securing a $3,000 mortgage signed by Katharine Saum, recorded in book 189, page 126, Jasper Co., Iowa. Release to be held in escrow until notice of death of Wilson, then to be placed/ on record on evidence being produced that interest is paldU to date of said death. Then record to be delivered to said Katharine. A. M. Harrah.” After Mr. Wilson’s death - this release was properly recorded. On the same date of the transaction with Katharine Saum, Jay Saum received from the deceased the sum of $3,000, and on the same date executed and delivered to the deceased a mortgage on real estate in Iowa, containing provisions substantially the same as those found in the mortgage given by Katharine Saum. The annual payments provided for in the Jay Saum mortgage were all made, the last payment having been made by a promissory note, and acknowledged by the deceased by a letter as follows: “Lincoln, Nebraska, May 22, 1900. Jay Saum, Esq., Dear Nephew: I found your letter of the 9th inst. awaiting me on my return from Kansas City and Wichita, enclosing your promissory note for $170, payable on one year from May 1, 1900, with 6 per cent, interest, for which I am very thankful, as it closes up the interest to May 1,1900. I inclose you a note, which please carefully preserve, as it may be useful some day.” The deceased also executed a formal release of the Jay Saum mortgage, and on June 27, 1900, delivered the same to Mr. Harrah, taking from him a receipt substantially like the one given for the Katharine Saum release. This release was also recorded after the death of Mr. Wilson. No notes were taken by the deceased from Katharine or Jay Saum in connection with his transactions with them.
“Upon the foregoing facts the court finds the following conclusions of law: In the construction of the contracts between the several parties herein and now under consideration in this case, it is only necessary to consider, in determining the issues joined between the parties, the act to be performed and the manner of performing it. And such construction therefore must be adopted as will give effect to the provisions which carry out the intent of the contract made between the claimants herein and the deceased William W. Wilson. It does not seem to the court
In the final disposition of the case in the district court the court allowed to Mr. Munger and Mr.- Mockett, as guardians ad litem, certain attorneys’ fees, and directed that such fees should be charged to the entire estate. Nannie W. Fiseus brings the case to this court by petition in error because of the judgment of the lower court charging her with the sum of $5,000 received by her from the deceased in his lifetime, and directing that the same be
Omitting for the present the question of attorneys’ fees, the contention of the parties in this court may be summarized as follows: The parties to the action who oppose the right of Nannie W. Piscus, Katharine Saum Howard and Jay Saum to participate in the distribution without accounting for the sums received by them, from the deceased now contend that the transaction of the deceased with reference to the sums received from him by those parties was an attempt on the part of the deceased to make a testamentary disposition of the sums so received. On the contrary, it is contended by the other side that the sums received by them should be treated as gifts inter vivos,
Taking up first the claim of an attempted testamentary disposition of the property of the deceased, we find ourselves unable to agree with that contention. A testamentary disposition of property involves the act or will of a single individual, a condition that does not here exist. The question involved is rather one arising out of contracts between parties in every respect possessing the capacity to contract. The rights of the parties must, therefore, depend upon their contract obligations, and in the
It becomes important, therefore, to consider the relations which these parties sustained toAvard the deceased, and the course which they pursued with reference to the contracts subsequent to the time of their execution. No one could read the record in this case without becoming convinced^ that Nannie W. Fiseus and Katharine Saum Howard were < favorite nieces of the deceased, and that Jay Saum was a [ favorite nephew. He seems to have been a frequent visitor at their homes. His communications to them were of a kindly and endearing nature, and his every act in connection Avith the transactions involved showed a deep solicitude for their welfare and the ultimate benefits which they might enjoy from his bounty. There were frequent defaults in’ the payment of the instalments of interest, sometimes extending partially for a year or more after the time of payment, and no word of protest or act on the part of the deceased because of such default, and the fact that after such defaults had occurred he took the precaution to place the discharge of the mortgages, executed by these parties in his favor, in the hands of third persons, in connection with the statements made by him at the time they were so deposited, seems to show conclusively'that it was. never his intention to require a return of the principal sums given by him to these relatives. The intention of the
As to the matter of attorneys’ fees, counsel who were appointed guardian ad litem for their respective wards were entitled to have their fees allowed ,by the court and taxed as a part of the costs of the case. The only question is whether it would be equitable in this suit to require that item of costs to be paid by all of the parties in proportion to their interest. The general rule is that in a partition proceeding, where such proceeding is adversary, counsel fees may not be taxed against the entire estate, and while in such cases, where infants are parties, considerable latitude has been given to the discretion of trial courts, yet where, as in this case, the appointment is not a mere formal one, but is for the purpose of conducting the litigation on behalf of the wards, and such wards choose to make the proceeding an adversary one, we think the more equitable rule is to require them to stand on the same footing with other parties to the litigation, and, under, the cir
We recommend that the judgment of the district court as to Nannie W. Fiscus, and in so far as it taxes attorneys’ fees to be borne by all the parties, be reversed, and that the cause be remanded to the district court, with instructions to enter a decree in conformity with this opinion.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court as to Nannie W. Fiscus, and in so far as it taxes attorneys’ fees to be borne by all the parties, is reversed, and the cause is remanded to the district court, with instructions to enter a decree in conformity with this opinion.
Judgment accordingly.