198 Iowa 1246 | Iowa | 1924
— Theo Singsank was the owner of two farms, located in Carroll County, Iowa, one containing 160 acres and the other 143.43 acres. He died on the 14th day of May, 1920. His wife preceded him in death many years. Surviving him as his children and only heirs at law were plaintiffs Barbara Hal-bur and Katie Hermsen, and defendants, Henry Singsank and John A. Singsank. Katie Hermsen died during the pendency of this action, and George H. Bartels, administrator of her estate, was substituted as plaintiff.
On May 1, 1920, Theo Singsank executed a deed of the 143.43-acre farm to his son' Henry Singsank, and a deed of the 160-acre farm to his son John A. Singsank. It is these two deeds that are sought to be set aside in this action. The deeds were drawn and acknowledged by F. G. Schreck, a notary public and banker. At the same time the deeds were drawn, Schreck drew a will for Singsank, and it was signed and witnessed. At the same time, two notes of $8,000 each were drawn by Schreck, at the request of Theo Singsank, one running to Barbara Halbur, and the other to Katie Hermsen. These notes, by direction of Theo Singsank, were to be signed by the two boys, Henry and John, and were signed by them within a day or two, and left with Schreck at the bank. The grantor of the deeds, at the time théy were executed, directed Sehreck to have them recorded ; and Schreck filed them for record, and they were duly, recorded on May 4, 1920, in the office of the recorder of Carroll County. The will executed on May 1st was. probated in July, 1920, and Henry and John were appointed and qualified as executors. Singsank had made a will some years before, and. it was destroyed when the last will was executed, on May 1st. The record does not disclose the contents of either will. By direction of the executors, Schreck delivered the notes to the payees thereof, plaintiffs Barbara Halbur and Kate Hermsen, in July, 1920. The notes were signed by both Henry and John Sing-sank. The testimony introduced by plaintiffs, appellants, and appearing in their abstract presented on this appeal, does not, in any substantial degree, support the allegations of their petition, that the grantor, at the time the deeds were executed, was not of sufficient mental capacity to execute them, and that he was mentally incapable of understanding or comprehending the
‘ ‘ Gentlemen, I will say to you now, there is no use of your' wasting any time in arguing the question of undue influence, because there is no evidence on which you can base such a claim; and there is no use of arguing the question of mental incapacity, because there is no evidence before the court on which you can base a claim of that kind.”
Indeed, counsel in their argument say:
“If this were merely an action to set aside these two deeds on the ground of undue influence and mental incapacity, the record is possibly not strong enough to justify such a procedure.”
Evasively, counsel argue that undue influence and mental incapacity, to a certain degree, were shown, and that fiduciary relations existed between the grantor and the grantees of the deeds; and that, when the deeds were drawn, on May 1st, appellants were not present; that they had been at the home of their father the day before; and that the boys knew that they would shortly return; and that the deeds were drawn in the interval between their leaving and returning. The intimation is that such time was selected for the drawing and execution of the deeds, and that someone outside of the family, who was present when the deeds were drawn, advised grantor how to draw the deeds and notes; and that a consideration of all such matters shows that a constructive fraud was perpetrated upon appellants, making the deeds invalid.
The record does not support .the contention of appellants. No fiduciary capacity is shown, outside of relationship. The defendants did not live with their father, and he did not live with them. They did not transact his business. He attended to his own business affairs. He was not an old man, — he was sixty-
Other witnesses, including Rev. Father Huesmann, who was pastor of the church to which Singsank belonged, and who visited Singsank during his last illness, testified' that his mind was sound and clear, and that he understood the business he was transacting; that he personally directed everything that was done; that he even gave to the scrivener description of the lands placed in the deeds.
Extension of this opinion by further recital of evidence would profit no one. The record does not warrant disturbance of the deeds involved. Unquestionably, the decree of the lower court was right. The case is affirmed. — Affirmed.