Burger v. Krall
| Decision Date | 10 March 1931 |
| Docket Number | 40613 |
| Citation | 235 N.W. 318,211 Iowa 1160 |
| Parties | WILLIAM F. BURGER, Administrator, Appellee, v. J. L. KRALL et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Johnson District Court.--R. G. POPHAM, Judge.
Suit in equity by the administrator of the estate of Anna Fryauf deceased, against her brother Frank Fryauf, Sr., and the husband of his daughter, J. L. Krall, to compel an accounting, as agents or trustees of a constructive trust for deceased. Decree for plaintiff. Defendants appeal.
Affirmed.
Donnelly Lynch, Anderson & Lynch, for appellants.
Byington & Rate, for appellee.
We give our attention first to three questions of fact: (1) Whether a relationship of trust and confidence in fact between decedent and defendants existed. If so, (2) whether defendants, through such relationship and in their dealing with decedent personally, obtained an advantage or profit. And if so, (3) whether the profit or advantage obtained by each was separable and several from that obtained by the other and obtained severally and separably from each other or jointly. The evidence is not materially in conflict. Only the conclusions of fact and of law to be drawn from facts proved are the subject of the controversy.
Decedent was never married. She was born in Bohemia, could not read or write, could speak English, but spoke Bohemian when talking with people of that nationality. She had been doing domestic work. An employer testifies that:
Decedent also had dropsy. She died May 29, 1928, at the age of 69, survived by three brothers and three sisters, and by nephews and nieces. She left a will, dated March 30, 1927, giving her property to her six brothers and sisters and a nephew, to be divided equally among them. She had a home, the proceeds of which were $ 1,900, which, with a check for about $ 60, given by Frank Fryauf to the administrator, the source of which does not appear, was the only property that came into the hands of the administrator. Defendant Krall is the husband of the daughter of defendant Frank Fryauf. Defendant Krall was at one time cashier of a bank at Hills, and later, cashier of a bank at Fairfax. Decedent had savings which, while Krall was cashier of the Hills bank (prior to May, 1924), were deposited on certificate in that bank. The certificates were signed by Krall. A mortgage for $ 6,000, given by Bulger and wife, owned by the Hills bank, was, through Krall, sold to decedent. Whether decedent ever had personal possession of the mortgage does not appear. Krall told Bulger to pay the interest to defendant Frank Fryauf. Mr. Bulger testifies:
Mrs. Bulger testifies that Mr. and Mrs. Krall
The Bulgers paid off the mortgage October 23, 1924, by check for $ 6,390, payable to the order of decedent. This check was paid, and has upon it decedent's indorsement by mark attested by Krall. For this fund, under date of November 3, 1924, the Fairfax bank issued a certificate of deposit payable to decedent, for $ 6,400, signed by Krall, as cashier, which is stamped "paid" May 4, 1925. This certificate bears no indorsement. On May 4, 1925, certificate in renewal for $ 6,500, signed by Krall, cashier, was issued. It was stamped "paid" November 2, 1925, and has indorsed on it the name of decedent by mark, in defendant Frank's handwriting. This certificate was taken up by two new certificates, dated November 2, 1925, for $ 4,000 and $ 2,500, respectively, payable to decedent, which, in turn, were stamped "paid" February 10, 1926, indorsed in the name of decedent by mark, defendant Frank (and another) witnessing the mark. It will be noticed that the certificates up to February 10, 1926, were payable to decedent only, and that the date these last mentioned certificates were taken up was two or three months after decedent had "become very sick," and had quit working. These were taken up February 10, 1926, by new certificates of the Fairfax bank, one for $ 2,000, "payable to Self or Mrs. Nellie Grissel, or the survivor, or either of them;" one for $ 1,000, "payable to Self or Mrs. Frank Fryauf, Sr., or the survivor of either," one for $ 1,000, "payable to Self or Frank Fryauf, Sr., or the survivor of either or order;" one for $ 500, "payable to Self or Mrs. Charles Grissel or the survivor of either;" one for $ 500, "payable to Self or Frank Fryauf, Jr., or the survivor of either;" one for $ 500, "payable to Self or Mrs. Glenn Mathes or the survivor of either;" one for $ 500, "payable to Self or Mrs. J. L. Krall, or the survivor of either;" one for $ 500, "payable to Self or J. L. Krall, or the survivor of either." Frank Fryauf, Jr., is the son, and Mrs. Glenn Mathes and Mrs. J. L. Krall daughters, of Frank Fryauf. By this means defendant Frank was getting, contingently, $ 1,000 for himself, $ 1,000 for his wife, and $ 500 to each of his three children, including the wife of defendant Krall, and Krall was getting $ 500. The testimony of defendant Krall and his wife, in substance, is that the certificates dated November 2, 1925, were delivered to Krall by decedent at her home, and the indorsements (in Frank's handwriting) were on them at the time Krall obtained them from decedent; that decedent said to him, "I want you to issue these certificates, as follows,"-- giving him the names of the payees and the amount of the certificate to be issued to each; that, when the bank issued the new certificates, he delivered them to decedent; that he wrote out the directions, and "read it back to her, and she says, 'That is right--that makes $ 6,500, doesn't it?''' When the certificates were renewed again, August 9, 1926, they were for the same amounts and the same payees, except that the one to Mrs. Charles Grissel, Sr., was for $ 400, instead of $ 500. Krall testifies that decedent "instructed me to renew the certificates just as they were, with one exception,--she needed some cash, and wanted a $ 100 off of one, and asked me to make Mrs. Grissel's certificate for $ 400, instead of 500;" that they were delivered to decedent. The indorsement on the last two mentioned sets of certificates was in the name of decedent by mark, attested by Krall, or Krall and his wife. These certificates of August 9, 1926, were indorsed in the name of decedent by mark, and the indorsement witnessed by Frank Fryauf, and were renewed January 27, 1927. The renewals of January 27, 1927, were made in seven certificates,--six for $ 1,000 each. The six were each in the same form above set out, to "self," or, alternatively, one to defendant Frank Fryauf, Sr., another to his wife, another to his daughter Mrs. Glenn Mathes, another to his son Frank Fryauf, Jr., another to his daughter Mrs. J. L. Krall, another to J. L. Krall. The seventh was for $ 400. It will be noticed that Miss Grissel and Mrs. Grissel, the payees in the next previous sets, were dropped. The certificates of January 27, 1927, were taken up by six certificates, dated February 11, 1928, each for $ 1,000, payable in like manner, "to Self or," alternatively, one each to defendant Frank, his wife, his same two daughters and son, and Krall. These were indorsed in the name of decedent, by mark witnessed by both defendants. They were payable in six months, but were renewed in about three months,--viz., May 3, or May 23, 1928,--except the one in which the wife of defendant Frank was named. She had in the meantime died, and the amount of that certificate had been paid to defendant Frank Fryauf, as defendants testify, by...
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