25 S.D. 223 | S.D. | 1910
This case comes before the court upon an appeal from the judgment in favor of the defendants, and from an order denying a motion for a new trial. In the complaint the plaintiff alleges that he is and was the owner, at all of the times therein mentioned, of certain moneys and securities which were the proceeds of the sale of -certain tracts of real estate belonging to him, and rents and profits accruing therefrom, which moneys and securities came into the possession of his brother W. S. Jones, now deceased, while the latter was acting as attorney in fact and confidential agent for the plaintiff. The case was tried to the court without a jury and the court finds in effect the following facts:
That the -plaintiff and W. S. Jones were brothers, and on the 3d day of October, 1902, the said W. S. Jones died at the city of Sioux Falls, leaving a last will and testament of real and personal property, and appointed the defendant Harry W. Subera as executor of said will; that -said will was duly admitted -to pro-bate on the 24th day of November, 1902; that soon thereafter the said defendant Subera duly qualified as such executor, and entered upon the discharge of his duties-as such; that the devisees - and legatees named in said will, and the bequests given to each, are as follows: To Nellie B. Jones, $10,000; to Lewis Jones, $1,000; to Ezma R. Jones, $500; to Charles II. Vincent, $500; to C.
The court further finds that the plaintiff contested the last will and testament of W. S. Jones, deceased, and -claimed the property of which the said W. S. Jones died seised under a former will, being the same property that was distributed by • the said defendant Subera, as executor of said will, under the direction of the county court, and also the same property- which the plaintiff seeks to recover in this action as trust funds held by the said W. S. Jones at the time of his death; that on the 18Ü1 day of February, 1905, the day fixed by said county court for hearing the petition • filed by the said Subera as executor, known as the third term report, the plaintiff appeared by counsel, and consented to the items of account which had been paid by the said executor, as shown by his said third'term report, and also that an order approving the same be made; that the plaintiff appeared in said county court and took part in the probate of the estate of the said deceased from its inception, and was conversant with the steps taken and had in said matter, and knew what property was being administered by the executor under the direction of the court, and never at any time claimed the property was his by virtue of any trust relation existing between himself and his deceased brother, or otherwise, and never made any objection to -the distribution of 'said property under said will by said executor to the various heirs, devisees and legatees therein named; that it appears from
The court from these findings concludes: “That the defendants, nor either of them, are indebted to the plaintiff in any sum whatever; that all the money and property that was distributed by the defendant Harry W. Subera as executor of the last will and testament of Wilson S. Jones, deceased, under and by direction of the county court of Minnehaha county, S. D., was the property and money of Wilson S. Jones at the time of his death, and that plaintiff Isaac S. Jones had no interest therein; that the plaintiff Isaac S. Jones is estopped from claiming any of the money or property that was distributed by the defendant Harry W. Subera as executor of said last will of Wilson S. Jones, deceased, by reason of his conduct and acquiescence in the administration of 'said estate and distribution thereof; that the plaintiff, Isaac S'. Jones, and his brother, Wilson S. Jones, in his lifetime and some
The evidence is very voluminous and we shall only refer to ■such parts of it as we deem material in the determination of this case. The transactions between W. S. Jones, deceased, and the plaintiff, resulting in the execution of the deeds to the real estate by the deceased to the plaintiff, are very fully stated in the case of Jones v. Jones, 20 S. D. 632, 108 N. W. 23, and therefore need not be repeated in this opinion.
It does not affirmatively appear from the evidence in this case that the deceased, W. S. Jones, conveyed any .of the real estate that he had conveyed to the plaintiff under the powers of attorney executed by the plaintiff to him, but it does affirmatively appear from the evidence that the said W. S. Jones, after the execution of the deeds of the real estate to his brother, the plaintiff, managed and controlled the property up to the time of his death, paid off mortgages and other debts, and sold and disposed of property, the title of which still remained in him. And it does not affirmatively appear from the evidence that any of the proceeds of the properties conveyed by him to the plaintiff, received by him, constituted any part of the funds involved in this action. A considerable portion of appellant’s brief is devoted to establishing the doctrine that trust funds may be followed and recovered
But, assuming that all or a part of the fund involved in this action was in fact trust funds received bjr the said W. S'. Jones under the powers of attorney, belonging in fact to the plaintiff, we are of the opinion that the court properly found, under the evidence, that the plaintiff was estopped from claiming- the same in this action. It appears from the evidence that in 1894 the deceased executed a will in which, after making a few small bequests, he bequeathed and.devised the residue of his property to the plaintiff, and appointed him as executor; that subsequently in 1902 the deceased executed a second will, bequeathing and devising his property to other oarties,. among whom were Nellie B. Jones, his son, and daughter, and small -bequests to other parties, and the
I. S. Jones, testifying as a witness in his own behalf in answer to the question, “You claim title to this land you have been testifying about. State how much money you ever put into the purchase of the land” — says: “A. There is receipt acknowledged in each and every deed. Q. Did you put $i into the sale or purchase of either one of these tracts of land? A. The consideration cost me thousands of dollars. I mean by that the consideration was that I should abandon and not do any business, but hold myself in readiness there [state of Washington] to come here any time he called for -me by wire or letter. I put money into' the purchase of this land in that way. By the Court: Q. Wexe those deeds made to you as a gift ? »A. That was the intention; yes, sir.” He was thereafter asked the following question: “I call your attentioxi to the northwest quarter. * * * Did you pay any money for that conveyance to you ? By the Court: I understand him to say that he did not pay any money for any of the conveyances.” To the question, “Did you claim this property of which Wilson S. Joxxes died possessed by virtue of a will?” he answered: “I ■ claimed it under a will and deeds both.” He was also asked the following question: “There has been a letter introduced here marked ‘Exhibit 21’ written by you to Ralph Parliman. Mr. Jones, I will ask you whether or not these transactions that have been mentioned in the testimony and ixi the documentary evidence, wherein Wilson S. Jones acted as your attorney in fact under these powers of attorney, had all been settled and closed up before you took these powers of attox-ney home with you? A. Yes, sir.” There is a conflict between the counsel as to the construction to be given this answer; the plaintiff’s counsel contending that it relates only to the transactions between the deceased and the parties that he has been dealing with,' while the defendants’ counsel contend that it relates to -the transactions between the plaintiff and the deceased; and the court seems to have taken this latter view of the evidence, as appears by the findings. We are
It is further disclosed by the evidence that, subsequently to the decease of W. S. Jones, in numerous conversations with different parties, Isaac S. Jones stated that he only claimed the home farm, which was a farm consisting of 240 acres formerly occupied by the deceased, and that he made no claim whatever to the personal property devised to Nellie B. Jones in the will. Mr. R. W. Parliman, who acted as attorney for W. S', and I. S. Jones until differences arose between them in 1902, and who acted as attorney for Nellie B. Jones in the proceedings in the county court, testified that : “He [Isaac S. Jones] said that he wanted Nellie to have the bequests that had been given to her under the will of her uncle Wilson S. Jones, and that he was going to see that she got them. But so far as the home farm was concerned, he proposed to have that himself; that that was his.”
It further appears from the evidence that the deceased in his lifetime instituted an action against the present plaintiff to have the title of what is known as the home farm of the deceased decreed to him, on the ground that the deed made by him to Isaac S. Jones was a conveyance in trust or mortgage. Judge Aikens had been employed by the plaintiff to defend that action, and while that suit was pending the said Wilson S. Jones died, and when proceedings were taken against Nellie B. Jones to compel her to turn over the securities in her hands to the executor, she applied to Judge Aikens to act as her attorney in connection with R. W. Parliman to defend her in these proceedings. Judge Aikens declined to act as her attorney if her interest clashed with the interests of the plaintiff, and to settle this matter it was arranged there should be a meeting of the parties. As a result of such arrangement, the plaintiff, Nellie B. Jones, and R. W. Parliman went together to the office of Judge Aikens, where the matters were all talked over. Judge Aikens in regard to this interview testified as follows: “Q. You may state the conversation and the
E. E. Smith also testified: “I am one of defendants. Have known plaintiff about five years. Was acquainted with W. S. Jones in his life time. Remember the time he died. * * * In a general way I had conversation with Isaac Jones with ■reference to the mortgages and that -certificate of deposit that Nellie Jones had in her possession, turned over to her by Wilson S. Jones; that is, in regard to the property that he turned over to her. The first conversation I had with him was immediately after he returned, directly after the death of Wilson Jones. Isaac Jones isaid to' me he was very much pleased in the way his brother Wil
The executor Subera was examined, and on his examination was asked the following question: “Q. You may -state whether Isaac S- Jones, at any time during the administration of this estate and before it was closed, ever made any statement to you or claimed that the property being administered as the property of Wilson S'. Jones was the property of Isaac S. Jones by virtue of a trust relation existing between him and his brother, and that the same wa>s trust -property. A No, sir. I heard the testimony of Isaac Jones relative to having a conversation with me at my office •in the Minnehaha building. He did not state to me there that he claimed this property. He never made any such statements to me.”
It will thus be seen that the plaintiff not only failed to give to the executor, legatees, or court any notice that he claimed the fund as a trust fund, but repeatedly disclaimed any right to the funds as a trust fund until after the proceedings -in. the county court under the last will were concluded. We are of the opinion, therefore, that the court was clearly right in holding that the plaintiff by his acts, conduct, and declarations is estopped from now claiming the proceeds as trust funds in this action.
In the case of Sutton et al. v. Con. Apex Min. Co. et al., 14 S. D. 33, 84 N. W. 211, this court adopted the rule in regard to estoppels as declared by the Supreme Court of the United
It is contended -by the appellant that it does not affirmatively appear that the conduct, acts, and declarations of the plaintiff prejudiced the defendants in this action, but this. contention is clearly untenable. It is disclosed by the record that the defendant Subera proceeded under the orders of the court to distribute the estate, and that in pursuance thereof he paid over to- the legatees the respective amounts bequeathed to them, and the estate was fully settled and closed at the time this action was instituted. It may be fairly presumed that, had the executor been advised of the claim of the plaintiff during the pendency of the proceedings, he would have retained the moneys -in his hands until the claim of the plaintiff had been determined by an adjudication in the proper court, and to now hold him responsible for the moneys thus paid out by him under the order of the court would be manifestly unjust and inequitable. An equitable estoppel is properly and peculiarly a doctrine of equity originally introduced to prevent a party from taking a dishonest and unconscientious advantage of his strict legal rights. In an equitable estoppel the party is forbidden to set up his legal title, because he has so conducted him-self that to do it would be contrary to equity and good conscience; as in this case the defendant Subera would be again compelled to pay the amounts that he had distributed to- the legatees under the last will, and the other defendants would be compelled to pay over to the plaintiff the amounts received by them in good faith under the said will. Clearly such a result would be very prejudicial to all the defendants, and the -claim on the part of the plaintiff that the fund constituted a trust fund cannot be sustained in a court of equity. Assuming, therefore, as before-stated, that the plaintiff had the legal right to the funds involved in this action, yet he, by his conduct, acts, and declarations, in equity and good conscience is estopped from now asserting the same. The
On the trial of the case the plaintiff sought to prove that he was the owner of certain tracts of land in McCook county, which were sold by the deceased, W. S. Jones, in his lifetime, and the consideration for which had never been paid over to the plaintiff. It appears from the evidence, however, that these tracts of land stood in the name of W. S. Jones, and that he disposed of the same. When the plaintiff was upon the stand as a witness he was interrogated as to the ownership of these two tracts of land, and was asked the question whether or not these tracts of land had ■been conveyed to him by the deceased, and whether or not he had had in his possession deeds for the same. These questions were objected to on the ground that they tended to prove transactions between the plaintiff and the deceased, and that the evidence was incompetent under the provisions of subdivision 2, § 486, of the Revised Code of Civil Procedure. The court sustained the objection, and the evidence was excluded. We are of the opinion that the court was clearly right in its ruling.
It is contended by the appellant that the evidence sought to be elicited from the plaintiff that the deceased had executed deeds to him, and that they had been in his possession, but had not been recorded, was not within the provisions of the subdivision of the
A large number of errors are assigned, but plaintiff’s counsel in their brief state: “That the three essential questions in this case areFirst. Is the plaintiff the owner of the money and securities in question, proceeds from the sale and rental of his land? Second. Did such money and securities, or any part thereof, come into the possession of the defendants, and do they exercise dominion over the same adversely to plaintiff’s interests? Third. If so, are the rights of the defendants thereto superior or inferior to the rights of the plaintiff?” The first two questions are clearly answered by the court’s findings, first, that the claim of the plaintiff that he was the owner of the moneys and securities in question was not supported by the evidence; and, second, that the evidence failed to prove that any trust moneys came into the hands or possession of the defendants. These findings of the
At the conclusion of the trial the plaintiff presented to the court, and requested it to find, certain facts in favor of the plaintiff; but we are of the opinion that, under the evidence, the court was fully justified in refusing to find as requested.
Finding- no error in the record, the judgment of the circuit court is affirmed.