Blochowitz v. Blochowitz

• Decision Date: 29 January 1932
• Docket Number: 27915
• Citation: 240 N.W. 586,122 Neb. 385
• Parties: ALBERT J. BLOCHOWITZ ET AL., APPELLEES, v. FRANK J. BLOCHOWITZ ET AL., APPELLANTS
• Court: Nebraska Supreme Court

240 N.W. 586

122 Neb. 385

ALBERT J. BLOCHOWITZ ET AL., APPELLEES, v. FRANK J. BLOCHOWITZ ET AL., APPELLANTS

No. 27915

Supreme Court of Nebraska

January 29, 1932

APPEAL from the district court for Lancaster county: ELWOOD B CHAPPELL, JUDGE. Reversed, with directions.

REVERSED.

Syllabus by the Court.

1. A delivery of a deed of conveyance is sufficient if the grantor deliver it to a third person unconditionally for the use of the grantee, the grantor reserving no control over the instrument; and the wife of the grantor may be such " third person," to whom such lawful delivery of the deed may be made by the husband for the use and benefit of their children.

2. Evidence examined and held to establish the legal delivery of the deeds in suit.

3. To set aside a deed on the ground of want of mental capacity on the part of the grantor, it must be clearly established that the mind of the grantor was so weak or unbalanced at the time of the execution of the deed that he could not understand and comprehend the purport and effect of what he was then doing.

4. Undue influence which will avoid a deed is an unlawful and fraudulent influence which controls the will of the grantor. The affection, confidence and gratitude of a parent to a child which inspires the gift is a natural and lawful influence, and will not render it voidable, unless this influence has been so used as to confuse the judgment and control the will of the donor.

5. Even though a witness is shown to have testified falsely in some respects, his testimony as to matters concerning which he is corroborated by evidence of a credible nature should be considered and may be believed.

6. Where the issue is undue influence and testamentary or mental capacity, admission in evidence of former wills as tending to prove that the contested will, or other form of conveyance, was in substantial conformity with the testator's (and grantor's) former expressed purpose, made at a time when his competency is unchallenged and the existence of undue influence is not charged, is approved.

7. A prior will, executed when the testator's testamentary or mental capacity was and is unquestioned, and as to which the existence of undue influence is not charged, and which conforms substantially as to results produced to the instrument contested, may be considered as competent evidence for the purpose of refuting charges of undue influence or want of testamentary or mental capacity by showing that the testa tor (and grantor) had a constant and abiding scheme for the distribution of his property.

8. Evidence examined and held to establish the validity of the deeds in suit.

Appeal from District Court, Lancaster County; Chappell, Judge.

Action in equity by Albert J. Blochowitz and others against Frank J. Blochowitz and others. Judgment for the plaintiffs, and the defendants appeal.

Reversed, and cause remanded, with directions.

Mockett & Finkelstein, Thomas J. Dredla and Roy B. Ford, for appellants.

John J. Ledwith and Hall, Cline & Williams, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY, DAY and PAINE, JJ.

OPINION

EBERLY, J.

This is a proceeding in equity to cancel four warranty deeds which the amended petition charges "were executed on April 4, 1929," by Joseph Blochowitz when he "was eighty-five years of age, and because of his extreme age and the condition of his health he was mentally incompetent to execute such conveyances;" as to which it is further alleged that they "were procured by fraud and undue influence, practiced by the defendants John A. Blochowitz, Frank J. Blochowitz and George Blochowitz * * * and * * * were never delivered." The plaintiffs are Albert J. Blochowitz, Lena M. Yankton, and Anna Geistlinger, who are respectively the brother and sisters of the defendants named above. Rosalia Blochowitz, widow of Joseph Blochowitz, who is the mother of all of the other parties to this litigation, is also made a party defendant. She joined with her husband in the execution of the four conveyances in suit, but, as to her, the pleadings make no charge of participation in fraud or in the exercise of undue influence; neither is her competency challenged, nor is it alleged that she was in any manner deceived or defrauded in the transaction, or that she was the subject of undue influence. The allegations of the amended petition were traversed by appropriate pleadings, and upon the issues thus formed a trial was had, which resulted in a decree for the plaintiffs. Motions for new trial were filed by defendants, which were by the court overruled. Defendants appeal.

This court is now, by statute, to determine the issues de novo from the six volume record before us.

The consideration of the disputed evidence must be made in the light of the following facts: Joseph Blochowitz and his wife, Rosalia, were natives of Poland, but of German stock. They migrated to the United States in the year 1880, and purchased a quarter section of land in Lancaster county in January, 1884, on which they thereafter made their home. To them seven children were born, one of whom died in infancy, and six of whom were living at the time of the death of the father on February 20, 1930. There is no dispute in the evidence that life in this family was a life of unremitting service and toil. From the age of thirteen years the sons were required to carry on as men. The labors were incessant, the hours were long, entertainment and relaxation were unknown, with frugal fare and meager compensation. All parties concede that for many years, even after the sons attained their respective majorities, the father received and appropriated the fruits of the common toil, managed and controlled it as his own property, and ruled his household like the patriarchs of old, with a conceded power and supremacy unchallenged by its membership.

Reference in the briefs is made to the fact that the savings of Joseph Blochowitz and his wife, accumulated during the seventeen years after the purchase of their Lancaster county home, were unwisely loaned to the proprietor of a lumber yard at Crete, Nebraska, resulting in a total loss. So, after this incident, about the year 1898, the Blochowitz family continued their toil in pursuit of a fortune. In the meantime, in March, 1894, an additional eighty-acre tract had been acquired by the father. Thereafter further purchases of real estate were made by him until in July, 1904, when he bought the S. E. 1/4 of section 14, township 8, range 5, he had become the owner of 640 acres of land, all situated in the immediate vicinity of the home place, and most of it thereto adjoining. The record indicates that the real estate was all paid for prior to 1910. In 1901 Lena Blochowitz, then eighteen years old, was married to Theodor Yankton, and in the same year her sister, Anna Blochowitz, then fifteen years of age, was married to Mathias Geistlinger, and both daughters thereafter removed to new homes with their husbands, and thereafter ceased to labor under the father's direction or for the benefit of his family. In 1903, according to the record in this case, the earliest will of Joseph Blochowitz was executed. It bears date September 4, 1903, is in due form, and by its terms Lena Yankton and Anna Geistlinger are to receive the sum of $ 100 each; Frank and John Blochowitz are each devised a quarter section of land, and Albert and George are each to receive eighty-acre tracts. In November, 1906, Lena Yankton is paid $ 1,000 cash by her father, which is receipted for, "as inheritance from Joseph Blochowitz and wife." In this connection it may be said that on January 26, 1920, Anna Geistlinger is paid a like amount by her father, and an identical receipt executed by her. On the 10th day of April, 1907, Joseph Blochowitz executed the second will, which is also in due form. By the terms of this instrument Lena Yankton and Anna Geistlinger are to receive legacies in the sum of $ 100 each, Frank and John Blochowitz are each devised 160 acres of land, to Albert is devised 80 acres, and a like amount is given his brother George. Rosalia Blochowitz is named as residuary legatee, and "all former wills and codicils by me made" are revoked. On the 10th day of October, 1910, another will was executed by Joseph Blochowitz. It is in due form; expressly revokes "all former wills by me made," bequeaths to Lena Yankton and Anna Geistlinger the sum of $ 100 each, and devises to Frank Blochowitz the S. E. 1/4 of section 14; to John Blochowitz the S. 1/2 of the S. E. 1/4 and the E. 1/2 of the S.W. 1/4, all in section 11; to Albert Blochowitz the N. E. 1/4 of section 14; to George Blochowitz the E. 1/2 of the N. W. 1/4 of section 14, and the N. 1/2 of the N. E. 1/4 of section 11, all in township 8, range 5, East of the 6th P. M.

In 1913 Frank J. Blochowitz and immediate family, by direction of his father, moved upon the S. E. 1/4 of section 14, and thereafter improved, farmed and continued to reside thereon the record title thereto continuing in the father. On April 4, 1929, Joseph Blochowitz and his wife executed four warranty deeds, each in due form, which purport to convey the following Lancaster county lands: To Frank J. Blochowitz the S. E. 1/4 of section 14, reserving the payment of $ 600 to be made annually by grantee to grantors during their lifetime; to John Blochowitz the N. E. 1/4 of section 14, reserving a $ 400 annual payment to be made by grantee to grantors during their lifetime; to Albert Blochowitz the N. 1/2 of the N. E. 1/4 of section 11, reserving payment of $ 400 annually to grantors by grantee during lifetime of grantors; to George Blochowitz the E. 1/2 of the S.W. 1/4 and the S. 1/2 of the S. E. 1/4, all in section 11, also the E. 1/2 of the N. W. 1/4 of section 14, reserving...