Bosserman v. Watson
| Decision Date | 17 June 1941 |
| Docket Number | 44798. |
| Parties | BOSSERMAN v. WATSON (BOSSERMAN, Intervenor). |
| Court | Iowa Supreme Court |
Appeal from District Court, Clarke County; H. H. Carter, Judge.
Administrator of estate brought suit in equity to establish ownership in himself, as administrator, of bonds in defendant's possession. A petition of intervention was filed by the administrator of another estate, claiming a portion of the bonds. The defendant claimed ownership of them, asserting that the bonds were given to her by plaintiff's decedent. The trial court dismissed the petition of plaintiff and intervenor. They have appealed. Affirmed on intervenor's appeal and reversed on plaintiff's appeal.
For superseded opinion, see 287 N.W. 845.
McMartin, Herrick, Sloan & Langdon, of Des Moines, for appellants.
O. M Slaymaker and D. D. Slaymaker, both of Osceola, for appellee.
This case has heretofore been before this court, an opinion having been filed affirming the lower court which held that there had been an inter vivos gift of certain bonds to the defendant. The former opinion has been published in 287 N.W 845. A petition for rehearing was granted. The writer of the present opinion was not a member of this court at the time of the original submission of this case or of the petition for rehearing. By reasons of the conclusions hereinafter announced, the original opinion is herewith withdrawn and this opinion is substituted in lieu thereof.
Milo Remington, and his two sisters Cora and Etta Remington, had been residents of Murray, Iowa, for a number of years. About 1925 they moved to an acreage about one-half mile west of Murray where they lived until the time of their death. The sisters never married. Cora died January 24, 1933 at the age of 66. Milo died testate on January 5, 1937 at the age of 72 years, and Etta died on January 10, 1937, and at the time of her death was 74 years of age.
The litigation in connection with this case has developed by reason of the question arising as to whether or not there was a gift of certain bonds in the amount of $21,000 to the defendant by the decedent, Milo Remington, during his lifetime.
C. E. Bosserman, administrator with will annexed, of the estate of Milo Remington brought the present action in equity claiming that at the time of the death of Milo Remington he was the owner of $14,000 in school bonds and that also at the time of his death the said Milo Remington was the acting executor of the estate of Cora Remington, deceased, and as such executor had in his possession, as assets of the Cora Remington estate, bonds in the amount of $7,000. It is the contention of the plaintiff that the bonds in controversy are the property of the estate of Milo Remington. The defendant, by way of answer, states that all the bonds involved in the present case were given to her by the decedent, Milo Remington, prior to his death. Defendant further contends that she has been the owner thereof since that time and that said bonds were given to her in appreciation of many kind services that she had done for the decedent.
There was a petition of intervention filed by the administrator with will annexed of the estate of Cora Remington in which it was alleged that at the time of the death of Cora Remington she was the owner of $7,000 in bonds. It is further alleged that Milo Remington, brother of the decedent, Cora Remington, and executor of her estate, had possession of the $7,000 in bonds and that these bonds came into the possession of the defendant, Nellie Watson, but that the same continued as the property of the estate of Cora Remington.
The allegations of the petition of intervention are denied by the defendant.
In connection with the intervenor's appeal the record discloses that at the time this case was tried in the lower court, which commenced March 4, 1938, the estate of Cora Remington, had been pending since April 5, 1933. It was further shown that there had been no claims filed against the estate and that there was no indebtedness due any one from the estate. The evidence further discloses that the assets of this estate had been divided and that in the division between the two beneficiaries, Milo Remington and Etta Remington, the seven bonds claimed by the intervenor were assigned to Milo Remington as his property. An agreement of this character and a division of the assets of this estate in this manner was valid inasmuch as there were no creditors of the estate. Douglas v. Albrecht, 130 Iowa 132, 106 N.W. 354. The record shows that there are no persons or interests for whose benefit the intervenor now has a right to administer the property inasmuch as the two heirs of Cora Remington had divided the bonds in question. Heinz v. Vawter, 221 Iowa 714, 266 N.W. 486. The trial court dismissed the petition of intervention and we hold that this action was proper.
The facts involved in connection with the plaintiff's appeal necessitates a more detailed review of the record. The trial court found that there was an inter vivos gift of the twenty-one bonds to the defendant, Nellie Watson. Inasmuch as the former opinion is withdrawn it seems necessary for us to review the evidence. The record is voluminous and it is impossible to summarize all the facts. That portion of the testimony that pertains to the claimed space will not permit reference to all the evidence presented.
At the time of the trial in the lower court the defendant was 53 years of age. For a number of years she had lived in and about Murray. About the year 1915 she and her husband established their residence in a house adjacent to where Milo Remington and his two sisters lived. The relations between the Watsons, and particularly Nellie Watson, and the two Remington sisters and Milo Remington, were very friendly. The evidence discloses that the defendant aided the two Remington sisters in many ways by assisting them in their household activities. Cora and Etta Remington had made known to her their wishes and plans for their respective funerals in event of their deaths and at the time of the death of the two sisters, Nellie Watson took charge of the funeral arrangements and carried out their previously expressed wishes.
Nellie Watson and her husband, Dell Watson, operated a restaurant in Murray, Iowa, and at the time of the trial had conducted their business for about eight years. Milo Remington visited the Watsons at their place of business quite frequently and on numerous occasions stayed and visited for a considerable length of time. The Watsons furnished him with many meals and lunches for which they made no charge. The Remington sisters frequently gave gifts to the Watsons and often sent produce from their garden to the restaurant or to the home. At times when gifts and garden produce were given to them the Remingtons would place money in the bottom of the basket. On one occasion Milo Remington purchased an automobile and gave it to Nellie Watson. The evidence does not disclose any intimation but what all these acts were prompted by an appreciation of the kindnesses and services rendered by the Watsons, and particularly Nellie Watson.
Following the death of Milo Remington on January 5, 1937, E. K. Jones, an attorney in Osceola, Iowa, had occasion to talk with Nellie Watson. His testimony is in substance as follows:
That on January 8, 1937 he visited with Nellie Watson in the restaurant in Murray, Iowa; that she told him Milo Remington was about the best friend she had; that she had transacted his business for him during the last few years and especially after Cora died; that she had a key to his lock box in the Creston bank and had had for a considerable time; that she went to that box alone whenever she saw fit to do so and that he had signed some instrument giving her authority to go into this box whenever she wanted to or when the occasion called for it. Jones further testified that he told Nellie Watson that he had about $25,000 in notes and mortgages belonging to Milo, Etta, and Cora Remington in his possession and that she told him she knew he had this property. Jones was the attorney and Milo Remington had been the executor of the Cora Remington estate. The evidence further shows that at the time Jones went to Murray, Milo Remington had passed away and it was prior to Etta Remington's death. The testimony of Jones was to the effect that he had gone to Murray and to the Remington home to have Etta Remington sign an application to appoint somebody as succeeding administrator who might proceed in connection with the Cora Remington estate. At the time of this conversation, according to Jones, Nellie Watson asked him if he had drawn a will for Milo Remington and Jones replied that he had not but that he understood from Orlo (a relative) that Remington had a will. Her reply to this statement, according to Jones' testimony, was: " Yes, he has an old will, but I thought that if he had drawn a will in the last two years, then he would have remembered me."
At the Remington home, he learned Etta Remington was so sick that she could not be seen. As stated previously she died on January 10, 1937. On February 3, 1937 Jones again went to Murray and at that time he and C. E. Bosserman, present administrator with will annexed of Milo Remington's estate, talked with Mrs. Watson. Jones testified that he told Mrs. Watson that they (Bosserman and Jones) had been in Creston the day before to get the contents of Milo Remington's lock box and inquired if she knew whether he had any other lock box. He said she replied that she did not know anything about it. Jones then told her that they did not find the bonds in the box they expected to find and wondered if she knew where they could be. She replied, according to...
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