168 Iowa 153 | Iowa | 1914
“Deed of the Twins for my wife, Gussie. Bill of Sale of the business and office furniture to Matt, for my wife, Gussie.
“Instructions to Gussie.
“At my death go and get deed to Twins and the bill of sale recorded and bring them home with you. Keep the deed to Twins, and give Matt the bill of sale, or you keep it and let him have a copy of it, and let him accept in writing to you that he will comply with the conditions of paying you $30.00 per month; when he gives you this writing so agreeing to pay you, then give him the three deeds to the property described.
“Dated November 18, 1909. “J. M. Miles.”
Defendant entered into possession of the property under the deeds and bill of sale, as we find from the evidence, although it is denied by the defendant. But defendant did not record the bill of sale, and he has refused to execute to plaintiff his agreement to pay her $30.00 per month, and has refused to pay her such sum.
Plaintiff alleges that defendant’s right to the real estate covered by the deeds and the property covered by the bill of sale was conditioned wholly upon his execution of the agreement and payment to the plaintiff of $30.00 per month as part of the consideration for the same, and that defendant took possession of the property on December 28, 1911, and by such acceptance he has assumed the obligation to pay plaintiff said sum of $30.00 per month from the date of the death of said J. M. Miles.
The bill of sale recites:
“That in consideration of $1.00 and other valuable considerations, I, J. M. Miles, grant, sell and convey unto Matt J. Miles the following personal property now in possession of J. M. Miles, (myself), in Cedar Rapids, to wit: My real estate, loan, fire insurance, mortgage and loan business, in fact, all the business I have established and carried on in Cedar Rapids, together with all office fixtures, books and furniture, and everything belonging to my office. The further consideration of the above sale is that the property above
The bill of sale is dated March 19,1909, and is signed and acknowledged by deceased. In his answer, defendant averred that he was in partnership with deceased, his father, and that the partnership owned the property set out in the bill of sale; that defendant is the owner of an undivided half of such property; that defendant' did not take possession of the property under the bill of .sale, but was in and remained in possession as a surviving partner; that administration has been taken out in the estate of J. M. Miles, deceased, and that the probate court has exclusive jurisdiction.
Plaintiff and deceased were married December 2, 1908. Both plaintiff and her deceased husband had been married prior to their marriage to each other. There were no children by the latter marriage. By his first marriage, deceased had two children, both living at the time of his death, namely, defendant, Matt J. Miles, and a daughter, Agnes Hanna. Plaintiff had one child by her former marriage, Charles Thurston. Deceased had for a number of years been engaged in a successful real estate, loan and insurance business, and acquired considerable property. In anticipation of his death, and, as plaintiff claims, to settle his estate, deceased executed the deeds of conveyance and the bill of sale. There was a deed of the Twins, as two of his houses were called, to plaintiff. There were also three deeds to defendant, Matt J. Miles, and the bill of sale. One of the properties deeded to defendant was worth $6,000.00, another $2,500.00, and the third, $1,400.00,
“Emmons House — Flynn House — Sixth Avenue House— Fot Matt J. Miles.”
The bill of sale was in a separate envelope, marked: “Matthew’s Package.”
On one of the envelopes was written the instructions to Mrs. Miles, as before set out. These instructions were in the handwriting of deceased and were upon the envelope at the time the deeds were handed to plaintiff by her husband in the presence of another person.
We shall not review .the testimony. The facts, substantially as before narrated, are testified to by witnesses other than plaintiff and, although defendant contradicts them at some points, we find that the facts are established substantially
On the trial, defendant claimed that two of the deeds were handed to him by the notary public at the time they were signed and acknowledged by his father, but he retained them only about an hour and his father took them again to stand as unrecorded deeds until his death, and if anything happened to defendant the old gentleman could destroy them. This last statement is testified to by the defendant. He says nothing about the third deed, however, although he admits receiving the three deeds from plaintiff running to him.
From all the testimony, we think there was no thought of a delivery of the deeds by the old gentleman to defendant at that time.
In order to constitute a partnership it must be shown that the parties agreed to share in the profits and losses. Winter v. Pipher, 96 Iowa 17. Defendant did not so show.
As before stated, defendant admitted the receipt of the deeds and the bill of sale, and that he placed them on record. Plaintiff and her son Charles say that defendant obtained the papers on the forenoon of December 28th, a few hours after the old gentleman’s death. Defendant says he first learned of the existence of the bill of. sale on the morning of December 30th, about eleven o’clock in the forenoon, but the deeds were filed for record at nine o’clock on December 30th. In another place in his testimony defendant says he received the deeds and bill of sale on December 29th. It is apparent that the deeds and bill of sale, handed to defendant at the same time and in the same package, were in his possession long enough that he had opportunity to examine all of them carefully. He accepted the deeds, conveying to him a large amount of real estate, and the bill of sale, conveying the office, and went into possession of the property. He must be held to accept the burdens with the advantages.
We think the trial court was justified in finding that defendant had knowledge of the facts in regard to the deeds and bill of sale before his father’s death, and had knowledge of the conditions imposed on the gift, although defendant denies that he was present at any conversation between plaintiff and his father at which a bill of sale was mentioned; he says that he first learned of the contents of the bill of sale at his office on the morning of December 30th, but he corroborates plaintiff and her other witnesses in part when he
It is contended by appellee that the disposition of the property was not testamentary in character; that the deeds and bill of sale conveyed a present interest, reserving to the donor a life estate, citing: Saunders v. Saunders, 115 Iowa 275; Jones v. Caird, 153 Wis. 384; Wilson v. Carrico, 140 Ind. 533; Latimer v. Latimer, 174 Ill. 418.
She also contends that, even if the bill of sale stood alone and had no connection with the deeds, it would still be valid and effective^ even if testamentary, for it is witnessed and it is valid as an instrument of title, without being admitted to probate, citing: Olleman v. Kelgore, 52 Iowa 38; Otto v. Doty, 61 Iowa 23; Richards v. Pierce, 44 Mich. 444.
There is no argument in this court on behalf of the defendant. Without discussing the points just made and the authorities cited thereunder, we conclude, as we have already stated, that the deeds and bill of sale constituted one gift and were accepted as such. The gift as an entirety was subject to the condition of payment to plaintiff. Where a gift is accepted it is subject to all of the conditions attached. Rood on Wills, Sec. 625; Berry v. Berry, 31 Iowa 415, 418; Stewart v. Wills, 137 Iowa 16; Moran v. Moran, 144 Iowa 451, 463;
It is also contended by plaintiff that defendant took the property in trust to pay plaintiff the sum of $30.00 per month during her life, and the trust may be enforced in equity, citing: Curtis v. Portland Savings Bank, 77 Me. 151; Sheedy v. Roach, 124 Mass. 472.
"Without further discussion of the matter and for the reasons given, we are of opinion that the judgment and decree of the trial court was right, and it is, therefore, — Affirmed.