Chirurg v. Ames

• Citation: 116 N.W. 865,138 Iowa 697
• Parties: CHIRURG v. AMES.
• Decision Date: 10 June 1908
• Court: United States State Supreme Court of Iowa

138 Iowa 697

116 N.W. 865

CHIRURG

v.AMES.

Supreme Court of Iowa.

June 10, 1908.

Appeals from District Courts, Kossuth and Palo Alto Counties; W. B. Quarton, Judge.

Two actions were brought by plaintiff against defendant, one in Kossuth and the other in Palo Alto county. The action in Kossuth county was for an accounting, and the one in Palo Alto was to cancel a deed, made by plaintiff to defendant, for a life estate in a certain 80 acres of land therein situated. The cases were tried together in the district court of Kossuth county, resulting in a decree dismissing the petition in each case. Plaintiff appeals. Affirmed.Sullivan & McMahon and E. A. & W. H. Morling, for appellant.

Kelleher & O'Connor, W. S. Kenyon, J. J. Clark, and Harrington & Dickinson, for appellee.

DEEMER, J.

Plaintiff is the daughter of defendant, as a result of defendant's marriage to one Daniel J. Ames, who in his lifetime lived in the state of Illinois. Before her marriage to Ames defendant had been married to one Wright, by whom she had two children, John and Gertrude, and from whom she was divorced. She married Ames about the year 1877, and plaintiff was born April 10th, 1878. After her marriage to Ames she lived with him in Illinois, until his death, intestate, December 17, 1887. Upon his death defendant was appointed administratrix of his estate, and also guardian of the person and property of plaintiff, her daughter. In such representative capacities she received all the property of which her husband died seised, and in these relations, or as mother of the plaintiff, and with her (plaintiff's) consent, she has had charge thereof ever since. Having married one Chirurg, and made a home for herself, plaintiff having been, as she says, unable to secure a proper settlement from defendant, brought these two suits, the one for an accounting, and the other to set aside a deed, made by plaintiff to defendant, of some Palo Alto land, executed April 29, 1896. As to certain matters the facts are not in dispute, and the only thing involved in the first case is the accounting. At the time of the death of Ames the family consisted of defendant and her three children. They lived together as such until plaintiff's marriage in October, 1905, for a part of the time at Rutland, Ill., where Ames was living at the time of his death. Thereafter the family moved to Normal, Ill., to secure educational advantages, returning to Rutland in the summers, until the fall of 1894 when they moved to Ottawa, Ill., where they resided until the summer of 1896, when they moved to Boston, Mass., which place had, at one time, been defendant's home. They lived in a rented house in Boston until the summer of 1902, when plaintiff purchased a residence in what is known as the “Brighton District,” to which they immediately removed, and where they all lived until plaintiff's marriage. The children, John and Gertrude, were part of this family during all the time, save that for a year or two John was in Chicago, and recently Gertrude has been away from home part of the time teaching. When Ames died he owned considerable real estate in the state of Illinois, 80 acres of land in Humboldt county, Iowa, and 40 acres of land in Nemaha county, Kan. All of this real estate has now been disposed of, save the Kansas land. He also died possessed of personal property, which, at the time of distribution in 1892, amounted to $12,725.94. Plaintiff and her mother were the sole and only heirs at law and next of kin of Daniel J. Ames; plaintiff being entitled to two-thirds of all the property left by her father, save the Kansas land, and defendant being entitled to a life estate and a fee in the remainder of the real estate, and one-third, absolutely, of the personalty.

Defendant's accounts as administratrix were finally settled in July of the year 1902, and at that time it was found that she had in her hands, belonging to plaintiff, $7,858.57. As guardian of plaintiff, she inventoried the Illinois real estate, fixing a value on part of it at $5,400, but omitting to place a valuation on some of it. She inventoried the Iowa land, and valued it at $1,000, subject to her rights as widow. She also inventoried the Kansas real estate, but placed no value upon it. She also stated that Ames had in cash, at the time of his death, $1,300. She charged herself in this inventory, as administratrix, with insurance, on a house burned, at $1,200, with cash notes and rentals, $4,332.25, and with various notes, inventoried at $10,874. Reports were made from time to time, and finally, when plaintiff became of age, she filed her final report as guardian, and upon plaintiff's signing a certificate that she had examined the account, and had found the items correct, and that the balance due her was $8,164.22, the receipt of which she acknowledged, the guardian was finally discharged. As a matter of fact plaintiff received no part of this sum, but, with her consent, she then being a mere school girl, defendant took charge of the money, and has since used, expended, and kept the same. At that time it seems that defendant opened a new account with plaintiff, and charged herself with the sum of $7,858.57, the amount shown to be in her hands, at the time of her settlement as administratrix, in July of the year 1902. There is no attempt to go back of the settlements made by defendant as administratrix or as guardian; but she is asked to account for the amount she should and did receive after her accounts were closed as guardian.

Defendant kept two books, showing or pretending to show her receipts and disbursements, and these have been introduced in evidence, with oral explanations and comments. Plaintiff says that these books should not have been received, because not so kept as to be admissible under the statute. There is no merit in this contention. True, the books were not kept with any degree of system, nor do they meet the requirements of the statute; but it is not necessary, in an accounting proceeding of this kind, that the trustee keep such books as that they would be admissible under the statute. True, it is the duty of the trustee to keep books and vouchers, and to render accounts when demanded, but the kind of books and accounts to be kept and rendered the law does not fix. Much, of course, depends upon the circumstances of each particular case, and all subject to the thought that the burden is upon the trustee to make a proper and satisfactory accounting of the funds which came into her hands. If she does not do so, then every intendment is against her, and she should be charged with all items not properly accounted for. It should be said in this connection that plaintiff paid little or no attention to her money matters. As a rule she trusted her affairs to defendant, although she often made drafts upon her own funds, and, generally speaking, her mother followed plaintiff's wishes as to expenditures. Plaintiff was given an excellent education. She was taken through high school, given a four-year course in Wellesley, from which college she graduated, and a two-year post graduate course at Radcliffe. She was an excellant student, and earned a scholarship at a school in Athens. The mother was very indulgent with plaintiff, was proud of her achievements, and did everything that a mother could to give her an education and make her happy. She made many of plaintiff's gowns, took her to resorts in the summer, and in many ways economized in order that plaintiff might gratify her desires. As was to be expected, a suitor turned up in time, and when things began to be serious, defendant took a violent dislike to him, and when the engagement was announced, she did everything in her power to prevent the marriage. She claims to have looked up the antecedents of plaintiff's present husband before the marriage, and found them very bad, that he was a bogus “Russian nobleman,” and a base deceiver, both of men and women. She gave the matter publicity, and in every way endeavored to stop the marriage, but all to no purpose. As usual, when matters are so long deferred, the mother's opposition made her child the more determined, and plaintiff married the man to whom defendant had taken such a violent dislike, and is now living with him as husband,and, so far as the record shows, happily. As might reasonably be apprehended after a marriage under such circumstances, plaintiff or her husband or both concluded that defendant should make an immediate accounting of plaintiff's money and property to the last farthing, and after several attempts at peaceful settlement out of court, these actions were brought in this state, the first being aided by attachment, and the parties came into this jurisdiction, although all of them reside at or near Boston, and are asking the courts of this state to settle their difficulties.

We have already spoken of the books and accounts kept by the defendant, and of their admissibility in evidence. It should also be noted that defendant furnished at the...