186 Iowa 1091 | Iowa | 1919
Norman T. Yorse, the common ancestor of the parties to this suit, died testate, February 10, 1877, leaving him surviving his wife, Elizabeth, and two sons, Charles 8. and Frank W., his only heirs at law. The son Charles S. died intestate in the year 18901, leaving his wife, Augusta T., and three children, Norman T., Charles S., and Florence (now Miller), his only heirs at law. The mother, Elizabeth, did not marry again, and died testate, January 14, 1915, at the age of 84 years, leaving as her only heirs at law her son Frank T. and the above-named children of her deceased son, Charles S. The will of Norman T. Yorse,
“I will and bequeath my entire estate to my two sons, Charles S. Vorse and Frank W. Vorse, each to share equal in the said estate after all the debts are paid and I wish the debts to all be paid as soon as it can be done without sacrificing property. There is an indebtedness secured by mortgage on residence which I wish to be paid as soon as it can be done. Said payment to be made out of the funds of the estate though said residence is the property of my wife, E. M. Vorse. And I desire that the taxes on said residence and all the necessary repairs on said residence be kept paid and a good and reasonable support to my wife so long as she remains my widow.”
This action is brought by the widow and heirs of Charles S. Vorse, deceased, to charge the defendant, as trustee of Elizabeth Vorse, deceased, and to require an accounting at his hands for a large amount of property, money, credits, rents, and profits, alleged to have been obtained by him from his said mother without consideration, and by actual or constructive fraud. They also allege that Elizabeth Vorse executed and left a last will and testament, devising to the plaintiffs the one half of her entire estate, but that such will has been sequestrated or withheld from probate by the act of the defendant, in furtherance of the fraud and control of her property.
The defendant denies all of plaintiffs’ allegations of fraud, admits that he received some part of the property, moneys, credits, rents, and profits belonging to his mother, but says that such gift or transfer was, in every case, made by her of her own volition and good will, without any fraud or undue influence on his part. He also pleads the statute of limitations.
Upó» trial, of the issues thus joined, the court found for the defendant, dismissed the bill; and plaintiffs appeal.
It will be seen from the terms of the will that, while Norman T. Yorse devised his entire estate to his two sons, they were made to take it charged with liability for the payment of the mortgage on the homestead owned by his widow, and the duty of furnishing her a “good and reasonable support” during her widowhood. There is no very explicit showing of either the aggregate or net amount of the estate, but defendant admits, in a broadly general way, that the portion received by him was worth somewhere from $40,000 to $80,000.
It appears that Charles was the active executor in the settlement of the estate, and, up to the time of his own death, it is probable that the mother’s dealings with reference to the property were largely had with him. In the meantime, the administration of the estate was amicably accomplished and closed, each of the sons acknowledging receipt of his equal share therein. There is very little evidence of the details of transactions between mother and sons prior to the death of Charles, except a showing that, of the insurance received by her upon the life of her late husband, she lent $5,000 to each of the two sons, taking their several promissory notes therefor. These notes figure somewhat prominently in the later history of this case. It also appears that, during this period, the homestead property of the widow, mentioned in the will, was sold or exchanged for other real estate, title to which was taken in her name. It does not appear that the mortgage debt upon the homestead, payment of which was charged upon her husband’s estate in the hands of her sons, was ever paid by them, and we think it must be assumed that it was not so paid.
Immediately after the death of Charles, defendant took charge of his mother’s business and property affairs, and continued in that relation during the remainder of her life.
It is the plea of the defendant, and he testifies, that, of the some 30 different lots and tracts of land, title to which was held by his mother and later conveyed to him, about 25 were so taken and held by her at his request, in trust for his benefit, and that she never had any beneficial interest therein. Of this trust there is no evidence in the title papers or record, and the sole proof of its existence is in the testimony given by the defendant in his own behalf.
Concerning the other property, concededly held by her in her own right and conveyed to the defendant, it is his claim and testimony that she conveyed it to him freely and voluntarily, without suggestion or influence on his part. He admits, however, that she conveyed to him certain lots for the expressed consideration of $1,800, for which he promised to convey to her six lots in a tract of land formerly owned by her husband, which, “for sentimental reasons,'” she desired to hold; but that he had never, in fact, made such conveyance, simply because she did not call for or demand it during her lifetime. He also admits that included in these conveyances to him was another tract, of the value of at least $7,500, the title to which he still holds, and that still other lots so conveyed to him he has sold and disposed of. During the same period, he collected and received rents and profits upon the property owned by his mother, to the amount of several hundred dollars per year, but says that, at the end of each ’year, he had a settlement of some kind with her, and for the balances or remainders found due her, he gave her his promissory notes. These notes were never
In the year 1910, the mother received a severe physical injury, and was taken to a hospital for treatment. At this time, all the property formerly owned or held by her had been transferred to the defendant, except an interest which she owned in a coal mining lease in Pennsylvania, which was yielding her an income of from $500 to about $1,500 per year. Shortly after such injury, and about the time she was returned from the hospital to the home of the defendant, she executed an assignment, prepared by the defendant, to himself, for this last remnant of her estate, without valuable consideration.
During all the period from 1890 to the death of Elizabeth Vorse, in 1915, defendant seems to have dealt with her on the theory that she was chargeable with all the expenses incurred for her care and support, in sickness and in health ; and, in so far as any such charge or expense was paid by him, it was deducted from the proceeds or income derived by him from her property. Indeed, he suggests the idea that his father’s will imposed upon the estate devised to him and his brother no other burden than the maintenance of the homestead in repair — a theory so untenable as not to be open to argument.
So far as the división of the father’s estate is concerned, the brothers united in vouching to the probate court for its satisfactory character. It may be there was some conflict of preferences as to some of the items, as there is quite likely to be in every such transaction, but there is no evidence
It is not to be understood that we find that defendant had any conscious purpose or intent to defraud or impover
Somewhat illustrative, also, of the defendant’s attitude in these matters is his explanation with reference to the loans of $5,000 each which Mrs. Vorse made to himself and his brother. It appears that, for several years after defendant took charge of her business, the widow, or the widow and children, of Charles continued to pay Mrs. Vorse the accruing interest on the debt. Defendant testifies that he also paid interest on his note, but produces no voucher, endorsement, record., entry, or account of such payments. He further says that, in 1909, six years before her death, his mother took up and destroyed the note, and forgave him the . debt, and at the same time handed him the note of like amount which she held against his brother or brother’s widow, with instruction “to give to Norman [son of Charles] at some future time when I should deem host.” It was agreed*
“Q. You say you held that as a sort of a leverage? A. Perhaps, yes. Q. I understand, of course, very well what a lever is, and what leverage is. What was the lever, and what was it for? A. Mother and I talked it over, and she suggested there was no haste in giving it to Norman. Q. I am asking what you held it for? A. I held it so if .any accident happened to me, and mother would need some more help from them, her support, it wouldn’t entirely release Charles’’ side of the house from any obligation. Q. Just why did you hold, the note from the time of your mother’s death until July 27, 1915? A. No special reason, — just happened to.”
This “explanation” would be more explicable if defendant had not already declared:
“I had never regarded the provisions of my father’s will in reference to mother’s support as being a charge on the property I received from my father’s estate — always regarded it as simply being necessary for me to keep up the taxes and repairs on that house: that is, the old home.”
His own conduct in charging the expenses of his mother’s care and support against her individual property is entirely consistent with this manifestly erroneous view of his own obligation, and if we may assume' that such was his honest understanding of the effect of the will, it lends a more
In a preceding paragraph of this opinion, we mentioned the fact that, of the numerous transactions by Avhieh the defendant acquired title to the property of Elizabeth Vorse. there Avas but one to which any witness other than defendant himself undertakes to testify. In the year 1910, when Elizabeth Vorse was 80 years old, she received a severe injury, which crippled her for the remainder of her life. After being treated at a hospital for about 60 days, she was removed to the home of the defendant, where a nurse was engaged to care for her. Before this injury, she had transferred to the defendant every item of her property except her interest in the coal mining lease, and possibly the diamond ring, plain gold ring, and package of religious tracts, to which reference has been made. Under these circumstances, defendant prepared a written assignment to himself of her interest in the coal lease. This she signed, and her signature was witnessed by the nurse, — a precaution which, as we have said, he never before observed. The nurse, being called as a witness for the defendant, and speaking of the circumstances attending the execution of the paper, testified as follows:
“She said she Avanted me to sign it; that 'she was signing it over to Frank to take care of it for her, and that she did not want to bother with it. Q. That is what she said ? A. Yes, sir. Q. That is all she said? A. Yes; only she said, ‘I will tell you what you are signing.’ She said, ‘It is a lease on a coal mine in Pennsylvania. I want you to sign it. I want Frank to take care of it.’ ”
“A. Well, she said she wanted Frank to have that property. Wanted Frank to have what she had, and she was signing it over to him; and why I put the other to it, I must have been flustrated, because afterwards I knew I said what I hadn’t ought to have said. She never said it.”
It is sufficient to say of this corroboration of the defense that it is not at all convincing. The witness makes no pretense of knowledge concerning what, if anything, had passed between defendant and his mother upon this subject; and, as he admits he gave no consideration for the assignment, there seems to be an entire absence of any evidence rebutting the unfavorable presumption which the law attaches to the transaction.
Further discussion or recitation of evidence is unnecessary. As is often the case where dealings between persons in confidential relations are under inquiry, and especially where the party alleged to have been wronged is dead, it is difficult to compress into the brief statement which the paper limits of an opinion will allow, any adequate reproduction of all the testimony influencing’’the mind of the chancellor who must pass upon its merits. One must read the record as a whole, to get its real effect in letter and in spirit. Thus considered and weighed, it is our conclusion that the record before us not only fails to remove, but, on the contrary, serves to strengthen and confirm, the presumption that the act of Mrs. Vorse, in divesting herself of her entire estate in favor of the defendant, who stood in close confidential relation to her, was the result of undue influence on his part. There is not the slightest evidence that she felt or had any reason to feel under greater obligation, either of love or duty, to the defendant than to the family of her deceased son. She had but two children surviving her husband. One of those sons died a few years later, leav
In our opinion, the decree below must be reversed, and the defendant held to make due and proper accounting to the plaintiffs, who together are entitled, as heirs of Elizabeth Vorse, to the one half of the estate of which she died seized or possessed. Accounting will be made on the theory that the said conveyances and transfers to defendant by the deceased after the year 1890, and the moneys collected and received by him, were in trust for his mother. Of the several tracts or lots conveyed by her to him, there is now, as we understand the record, only the one men
We do not find the testimony in the printed record sufficiently explicit to enable us to state for ourselves the account here provided for, and the cause will be remanded to the trial court for that purpose. If the court shall find it necessary, it is authorized to hear additional evidence concerning these several items; but the cause is not to be considered as standing for a new trial upon any of the issues joined, and the new or additional evidence, if any is offered, will be restricted to a determination of the proper amount of the several items which we have designated; and when they have been ascertained, decree will be entered in harmony with the views we have here expressed. — Reversed and remaúded.