190 Iowa 49 | Iowa | 1920
— I. So far as this appeal is concerned, the single question is wbetber, in an accounting between remainder-men, one of them was awarded enough. The appellants John contend that the findings below did not allow them enough..
One contention on the part of the appellee is that no allowance can be made for some items claimed by the appellants, be
II. As to an item claimed to be due for paying a note of Watts’ at the Iowa National Bank, we cannot interfere with the refusal to allow this, if for no other reason than that this item is not pleaded.
III. As to the item at Century Savings Bank, we agree with the referee that the evidence is insufficient to charge Watts with same. We incline to hold that the item of the note at the Des Moines Savings. Bank is in like case.
IV.’ The most vigorous dispute is over a claim that Watts should be charged at the rate of $500 a year for six years, on account of rental for a farm owned by the father of both Lizzie John and Mary Watts. The farming upon which this claim is based began in 1902, and ended in 1908. Much of the testimony in support of this claim cannot be considered, because of the statute prohibition as to personal transactions with one deceased at time of hearing. And we find that the weight of the evidence is against the claim that any rental arrangement was ever made, or that anything is due by implied contract. It would serve no useful purpose to elaborate. We agree with the referee in declining to allow this item.
V. The appellants make claim now for compensation due Lizzie John for attending to renting, collecting the rent for, and looking after and caring for, the property of appellee Watts. With one exception, no claim on these accounts seems to have been made in the pleadings, nor have we been able to find what the alleged services were worth, if anything. The exception is an item of $8.75 which the referee declined to allow. This sum was paid by appellants to one Van Liew, for collecting rent. Without going into an elaboration that the size of the item will scarcely justify, we are of opinion that this should have been allowed.
VIII. The appellants were charged with having received $16 a month for the entire period during which Lizzie John attended to the renting of the Mary Watts property. The evidence shows fairly enough that there were periods aggregating, say, three months, in which the building was vacant. The appellee contends that, though this may be so, it may yet be the fact that, though the store was vacant for such length of time, it was due to the interval between the moving out and moving in of tenants, and that full rent may have been received even for the times at which the store was empty. It seems to us to be strained reasoning. And, on the evidence as it stands, we are inclined to add to the recovery of the appellant the further sum of $48, with interest thereon.
For the taxes on the farm for the years 1904 and 1908, appellant paid out $98.07; for the taxes on the home and for the year 1904, $12.39; for taxes paid on the farm in 1905 and 1907, $110.89. The refusal to allow these last is defended on the ground that, at that time, the father, Thomas A. Watts, was life tenant, and it was his duty to pay these taxes, and that, therefore, there can be no contribution exacted from Mary A. Watts. It is responded that, if it were assumed that Thomas A. Watts was under obligation, the fact is that he did not meet the obligation, and did not pay these taxes, and that appellant did, and thus benefited her fellow remaindermen. Appellee, in turn, responds that this might be so if the payment had been made to redeem from a tax sale, but that there never was a tax sale; that no money was paid on these items because the title of the remaindermen had become endangered,- that the proof of the expenditure is vague and uncertain; and that, for all that appears, if payment was made, it was made out of the common family purse. We shall not follow these various ramifications to the extent possible. We are satisfied these expenditures were made. We do not believe that the burden rests on the appellant to show that they were not made out of a common purse, and hold that their testimony that they paid, makes at least a prima-faeie case that payment was made fx-om their funds. We shall not pass on the distinction, if there be one,.between payment by one not a volunteer, made before tax sale ensues, or payment by the same after tax sale. We think the allowance for these taxes is controlled by the contract which was made between Thomas A.
"The said Thomas Watts shall pay all insurance and repairs out of the income derived from the property described in the above-named deeds as the same shall become necessary, or due, as the ease may be, together with all improvements. The insurance shall be carried on said properties in the name, or names, as the case may be, of the parties or party who are named as grantees in the deed covering that particular property, and in the event of any loss under said policies the amount realized therefrom shall be and become the property of said grantee or grantees named in the deed covering the property on which the loss occurs.”
And its interpretation is not difficult. The father had given these grantees the property upon which the expenditures of the kind referred to in the contract were made. He agreed to pay even for these out of any income that his life estate in the property yielded to him. We are not minded to hold that he is to go beyond that, and that, after having parted with the land and with the income from it, he should pay, say, for insurance for the benefit of his grantees out of some fund other than such income. We are of opinion that he is under obligation to pay for such outlays and expenditures only if they can be paid from the income, and that, therefore, those who assert that they need not pay because Thomas A. Watts was under obligation to pay, have the burden of showing that there was an income from which the payments could have been made. It follows that, without such proof, insurance, necessary repairs, and improvements paid by one of the reversioners entitle to contribution from the others.
This makes it unnecessary to consider the claim that Mary was under a partnership obligation in the dealings with her father which entitles to contribution on her part for these items.
It suffices that Thomas Watts was under no obligation to pay these; that the remaindermen, therefore, were; and that
We think there is nothing in Crawford v. Meis, 123 Iowa 610, as construed in Patty v. Payne, 178 Iowa 593, 597, that militates against these conclusions. See Cooper v. Brown, 143 Iowa 482, 493; Weare v. Van Meter, 42 Iowa 128.
As to obligation of the life tenant to pay for insurance for the benefit of the remaindermen, see 16 Cyc. 632; In re Cameron’s Estate, 158 Mich. 174 (122 N. W. 564, 566). See, generally, Thiele v. Thiele, 57 N. J. Eq. 98 (40 Atl. 446).
We hold that this is sufficient reason for holding that appellant should have contribution from Mary A. Watts for one third of said taxes, to wit, $73.78, and interest.
The decree belo 7 is modified accordingly. — Modified and affirmed.