Ehlinger v. Ehlinger

• Decision Date: 14 November 1961
• Docket Number: No. 50449,50449
• Citation: 111 N.W.2d 656,253 Iowa 187
• Parties: Kermit EHLINGER, Jack Ehlinger and Ormen Ehlinger, Appellants, v. Christine EHLINGER and Christine Ehlinger, Executrix of the Estate of Chris Ehlinger, Deceased, Appellees.
• Court: Iowa Supreme Court

Page 656

111 N.W.2d 656

253 Iowa 187

Kermit EHLINGER, Jack Ehlinger and Ormen Ehlinger, Appellants, v. Christine EHLINGER and Christine Ehlinger, Executrix of the Estate of Chris Ehlinger, Deceased, Appellees.

No. 50449.

Supreme Court of Iowa.

Nov. 14, 1961.

Mossman & Mossman, Vinton, for appellants.

Bordewick & Fischer, Vinton, for appellees.

SNELL, Justice.

A lack of evidence and a shortage of competent witnesses may be a serious handicap in a law suit. Plaintiffs' case, conceived in natural dissappointment, languishes in frustration and founders for failure of proof.

Bertha Ehlinger, the wife of Chris Ehlinger and the stepmother of Kermit Ehlinger, Gladen Ehlinger, later known as Jack Ehlinger, and Ormen Ehlinger, plaintiffs and appellants, died testate on April 30, 1944. Her estate was probated in Benton County, Iowa. None of plaintiffs was at that time residing in Iowa.

At the suggestion of the attorney for the estate and at the request of their father, plaintiffs executed a power of attorney authorizing their father to represent them in all estate proceedings. Chris Ehlinger, plaintiffs' father, elected to take his distributive share of the estate and not under the will.

In the proceedings to set off his distributive share, certain properties were sold to Chris Ehlinger. All except one of these properties were later sold by Chris. Under his power of attorney Chris Ehlinger, on April 6, 1945, assigned all the interest of Kermit, Gladen and Ormen to Chris Ehlinger and on the same date, as assignee, filed a receipt for their distributive shares in the estate. The estate was closed on April 26, 1945.

In 1946 Ormen Ehlinger and Gladen (Jack) Ehlinger, two of the plaintiffs, purchased from their father a plumbing business for approximately $2,000 less than its value. Exhibits received in evidence show notes executed to the father from time to time and receipts showing payment. There are bank deposit slips showing deposits by Chris Ehlinger for the sons and checks to and for them. Checks indicate that twice Chris furnished the money to settle collection suits against Ormen. These exhibits indicate that the father at that time was a creditor rather than a debtor of his sons.

In 1946 Chris Ehlinger married the appellee, Christine Ehlinger. Prior thereto they executed an antenuptial agreement whereby Christine waived any interest in the estate of Chris Ehlinger. Also prior to his marriage Chris executed warranty deeds to his property to his sons. The deeds were left for safekeeping in the office of his attorney. There has never been any delivery of the deeds.

On September 18, 1957, Chris Ehlinger executed his Last Will and Testament. In it he mentioned his prenuptial agreement and then said, 'However, our marriage in the past years has been very pleasant, and she has been very kind to me, and I now give, devise and bequeath to her all of my property, both real and personal, wherever the same may be situated, the same to be hers absolutely.'

This reference to his wife was in accord with statements to his attorney at the time, that 'he had been very happy with her during the last twelve years or during the years he married her. She had been very kind to him, and he wanted her to have all of his property.'

Chris Ehlinger died March 12, 1959. His will has been admitted to probate. His sons, plaintiffs herein, being disappointed by the loss of a hoped-for inheritance, brought this action claiming their father became a trustee of their share of the Bertha Ehlinger estate and that a constructive trust devolved upon property purchased with trust funds.

The trial court held there was a failure of proof. We agree.

I. In addition to written exhibits, plaintiffs offered oral testimony. Here the curtain falls in front of oral testimony of plaintiffs. Of the plaintiffs, only Ormen Ehlinger appeared as a witness. Over objection as to his competency under the dead man statute, section 622.4, Code of Iowa, I.C.A., he attempted to tell of conversations, explain transactions and relate statements and assurances of his father. He was not a competent witness for that purpose.

So many cases have discussed and so many articles have been written on the dead man statute that extended analysis is unnecessary here. It is sufficient to note that the witness was a party to the action, interested in the event thereof, attempting to testify to personal transactions and communications with a person deceased at the time of trial and against the executrix and devisee of the deceased person.

The witness was incompetent under the statute and his testimony offered in the face of the objection cannot be considered.

Nelson v. Nelson, 245 Iowa 1225, 1229, 65 N.W.2d 154, 156, involved a controversy between the administrators of the decedent's estate and the farm tenant of the decedent. The tenant attempted to testify as to oral agreements with the decedent. The court said: 'Under the dead man statute, section 622.4, Code of Iowa 1954, I.C.A., defendant was incompetent to testify to any personal transaction or communication between himself and decedent. Defendant's testimony was taken subject to standing objections to his competency under Code section 622.4, * * *.

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'The objections to the competency of defendant to testify to these and like matters were clearly valid. Upon this point no citation of authorities is necessary. Nor were these objections waived by the cross-examination of the defendant upon the propositions to which he had theretofore testified. (citations.) Hence, such testimony should be disregarded.'

In Bell v. Pierschbacher, 245 Iowa 436, 446, 62 N.W.2d 784, 790, the plaintiff testified, over objection to his competency, 'During that time * * * I did not receive any compensation for my work upon the Bell farm.' The court held that he was vulnerable to the objection, stating, 'A witness testifies to a personal transaction no less when he denies it than when he affirms it. (citations.)'

II. It is appellants' first contention that the evidence clearly shows that Chris Ehlinger received as the attorney in fact of the appellants their share of the estate of their stepmother and thus became trustee by operation of law. The record does not support such a claim. The record shows that on April 6, 1945, Chris Ehlinger as attorney in fact assigned all the interest of appellants to himself as an individual and then as individual assignee filed a receipt for the distributive shares. Appellants nowhere contend that Chris Ehlinger obtained his property by actual fraud, and there is no evidence upon which a claim of fraud could be based. All that is shown by the record is that property came to Chris Ehlinger in his individual capacity. The mere fact that the property was assigned to and received by Chris Ehlinger 15 years ago is not sufficient evidence from which we can impress a trust upon the property owned by him when he died.

Appellants quote and rely upon 54 Am.Jur., Trusts, section 218, reading as follows: 'A constructive trust, or, as it frequently is called, a trust ex maleficio, ex delicto, a trust de son tort, or an involuntary or implied trust is a trust by operation of law which arises contrary to intention and in invitum, against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy. It is raised by equity to satisfy the demands of justice. * * *' With this statement of the law there can be no serious dispute but there is no evidence before us bringing plaintiffs within the protection of this rule.

The case of Markworth v. State Savings Bank of Woden, 212 Iowa 954, 237 N.W. 471, is cited and quoted by appellants. That case primarily involved a question of procedure, and the factual situation was not the same as we have here.

The appellants argue that Chris Ehlinger acknowledged his trusteeship and did not repudiate it until his will became effective at his death. Appellants rely upon Mahaska County v. Ingalls, 16 Iowa...