Bell v. Pierschbacher

• Decision Date: 09 February 1954
• Docket Number: No. 48403,48403
• Citation: 62 N.W.2d 784,245 Iowa 436
• Parties: BELL et al. v. PIERSCHBACHER et al.
• Court: Iowa Supreme Court

Page 784

62 N.W.2d 784

245 Iowa 436

BELL et al. v. PIERSCHBACHER et al.

No. 48403.

Supreme Court of Iowa.

Feb. 9, 1954.

Stuart & Stuart, Chariton, for appellants.

Garrett & Bown, Corydon, for appellees.

GARFIELD, Justice.

This is an action in equity for specific performance of an alleged oral contract of decedent M. D. Bell under which plaintiff Earl H. Bell, an adopted son, claims to own the personal property left by decedent and a life estate in a farm of about 120 acres, and plaintiff Lloyd C. Bell, Earl's son, claims the remainder interest in the farm. Defendants Delman T. and LaVon Pierschbacher, husband and wife, are grantees of a deed to the farm from decedent and legatees of substantially all his personalty. For convenience we disregard the fact that Delman as executor of the will of M. D. Bell is also a defendant.

After trial the district court held proof of the claimed oral contract was not clear, satisfactory and convincing, dismissed plaintiffs' petition, and quieted title to the farm in defendants.

While our review is de novo, rule 334, Rules of Civil Procedure, 58 I.C.A., we give weight to the trial court's findings. The case involves quite largely fact questions which the trial court was in better position than we to decide. Owen v. Wilden Hospital, Iowa, 62 N.W.2d 186; Salem v. Salem, Iowa, 60 N.W.2d 772, 776; England v. England, 243 Iowa 274, 278, 51 N.W.2d 437, 440.

As plaintiffs concede, proof of the claimed oral contract must be clear, satisfactory and convincing. A mere preponderance of the evidence is not sufficient. Vanston v. Rupe, 244 Iowa 609, 57 N.W.2d 546, 551; England v. England, supra, 243 Iowa 274, 278, 51 N.W.2d 437, 439; Byers v. Byers, 242 Iowa 391, 409, 46 N.W.2d 800, 809; Williams v. Harrison, 228 Iowa 715, 723, 293 N.W. 41.

We are not persuaded plaintiffs have established their case by the requisite degree of proof.

Decedent M. D. Bell owned and occupied the farm in controversy until he died March 17, 1952. His wife Louella also lived there until she died in January, 1945. Plaintiff Earl H. Bell, 50 at time of trial, and his brother Wheeler were adopted by M. D. Bell and wife and went to the Bell farm to live in 1911 when Earl was nine. They were sons of Richard Halleck, a cousin of Louella Bell. The Bells had no children of their own.

Earl helped with the farm work until he moved to another farm when he was about 24, a year or so after he was married in 1925. In 1932 his wife and daughter died and Earl, with his son Lloyd, 25 at time of trial, returned to the Bell farm. In 1943 Earl began working for the Beatrice Creamery in Chariton but continued to live in the Bell home. Mrs. Bell was bedfast from the spring of 1944 or perhaps earlier until she died. Earl cared for her at night. Mr. Bell and a housekeeper cared for her during the day.

In November, 1944, Mr. Bell wrote Lloyd Halleck, a blood brother of Earl Bell, that Mrs. Bell was 'awful sick' and if he wanted to see her he ought to come down from Waterloo to do so. Halleck then came to the Bell farm from Waterloo. He testifies Mr. and Mrs. Bell both said they wished Earl was home. 'I said if you'd give Earl a good deal you might give him something to work for.' Halleck offered to drive Mr. Bell to Chariton to talk to Earl. Halleck says he and Mr. Bell then went to Chariton and 'We talked the subject over and Melville (M. D. Bell) gave Earl the proposition to stay on the farm as long as Mother was alive and he had a 50-50 proposition with the understanding he'd use the farm until he died and then it'd take to Earl and then Lloyd.'

'Q. (By plaintiffs' counsel) Was that the substance of what Melville said to Earl? A. Yes sir.

'Q. What if anything did Earl say? A. Well I guess they come to an agreement.

'Q. What did Earl say whether or not he would accept it? A. They must have made an agreement because he went back there.

'Mr. Garrett (defendants' counsel): I move to strike the last two answers as an opinion or guess.

'Mr. Stuart: I admit that may go out. Was it talked? A. It was talked over, yes.

'Q. And Melville submitted the proposition you have related? A. Yes.

'Q. What did Earl say when his father made him that proposition? A. He said he'd go back out there.'

Evidently plaintiffs were not entirely satisfied with the above testimony because at the close of defendants' evidence we find this record:

'Mr. Stuart: Plaintiffs desire to recall Lloyd Halleck and he has returned to Waterloo, and plaintiffs request until tomorrow morning to produce this witness, and claim if he were present he would testify in reference to the conversation between him, Earl Bell and M. D. Bell about which he has given some testimony, that at the time M. D. Bell proposed to Earl Bell that if he would come back to the farm and stay and help take care of Mrs. Bell so long as she lived and do the farming, that he would fix his business so that when he died, the property would go to Earl and then to Earl's boy.

'Mr. Garrett: Defendants, while denying the truth of any such testimony admit, in order that it may not be necessary to recall the witness, he would so testify if he were present.'

We have set out the testimony of Lloyd Halleck fully because it is the only direct evidence of the oral agreement alleged by plaintiffs. The rest of plaintiffs' case consists largely of claimed declarations of M. D. Bell made after Earl gave up his job in Chariton and returned to the farm about December 1, 1944. While plaintiffs contend Earl fully performed his part of the agreement between December 1 and Mrs. Bell's death the following month (the exact date of her death is not shown), Earl stayed on the farm until February, 1947, when he left permanently. Earl says his mother's condition was 'very serious' when he returned to the farm. In the meantime Earl's son Lloyd was inducted into military service the last of September, 1946, until January 12, 1948. Lloyd did not live on the farm after September, 1946.

In July, 1945, Earl married a second time. His second wife had been married before and had two children. They all made their home with M. D. Bell until February, 1947. Evidently M. D. Bell did not like the way Earl did the farm work nor did he entirely approve of the conduct of Earl and his second wife and did not always get along well with them. He was disappointed that Lloyd would not return to the farm when he was discharged from the service.

We refer now to evidence of claimed declarations made by M. D. Bell. Mrs. Decker, the Bells' housekeeper from January, 1944, until July, 1945, when Earl was married again, says that one time after Mrs. Bell died she asked M. D. Bell 'where the place go to when he was gone; well, he said that goes to the Bells, it'll stay in the Bells' name all the time. He mean Earl and Lloyd. He said it more than once.' Mr. Decker also testifies Mrs. Bell said 'everything here belongs to Earl. That's what she said and that was true. I will not tell any lies.'

Guilford McCoy says that during the fall of 1947 M. D. Bell told him, 'I had an original agreement with Earl to leave everything to him during his lifetime and then it was to go to his son Lloyd but he says Earl got to drinking and married a woman I didn't approve of so I changed it and signed it all over to Lloyd.'

Frank Boothe testifies that on February 21, 1947, he asked M. D. Bell why he didn't sell the farm and move to town. 'He said he would not move to town or sell the farm. He said Earl got the use of that farm and when Earl was through with it it went to the boy.'

John Neighbours, employed by the Beatrice Creamery in Chariton in 1944, says that M. D. Bell came there to talk to Earl during the fall and told the witness his wife was bedfast and he had to have someone take care of her; Earl quit the creamery in December.

Troy Irving testifies that on February 26, 1947, M. D. Bell told him, 'I've given the farm to Earl and it's to go to Lloyd when I'm through with it. When Lloyd gets back from the service I expect Lloyd to take the farm and everything here and run it.'

Mrs. Larrington says that down to 1946 'Any number of times he (M. D. Bell) said what he had would go to Lloyd Bell when he was done with it.'

Arthur Hixson testifies that M. D. Bell called him down to fix a light plant about the time Lloyd went into the service. 'I was making fun of his light plant and said 'Why don't you junk the old thing?' He says 'Well, I don't know. I may not be here very much longer. Why would I want to monkey with it? When I'm done with it it goes to Earl and Lloyd.'

'Q. Has Mr. Bell at other times made a similar statement as to where his property was to go? Yes at different times.'

There is evidence that M. D. Bell made a will on October 3, 1945, in which he disposed of 'any and all property I may own at the time of my death' by leaving all personal property to Earl 'except the good dishes in china closet which I give to my grandson Lloyd C. Bell,' and a life estate in his farm to Earl with remainder to Lloyd. Wheeler Bell, Earl's brother, was left $10. M. D. Bell made three subsequent wills to which we later refer. Two witnesses for plaintiffs say they regarded M. D. Bell very highly. One of them adds he was an honest man of his word.

There is no testimony except that given by Lloyd Halleck that his brother Earl Bell returned to the farm under an agreement to stay only until the death of Mrs. Bell which occurred, as could be expected, less than two months later. Defendants argue it is not probable M. D. Bell would make no provision for his own care after the death of his wife which appeared to be imminent. The argument seems to have merit. Obviously plaintiffs are not entitled to prevail if the agreement was that Earl should stay on the farm during M. D. Bell's life because Earl left there five years before M. D. Bell died.

We may also observe there is no testimony even from Lloyd Halleck that M. D. Bell expressly agreed not to dispose of his...