Else v. Fremont Methodist Church

• Decision Date: 15 November 1955
• Docket Number: No. 48782,48782
• Parties: Clarence ELSE, Guardian of Sim Cundiff, an Aged Person, and Clarence Else, Guardian of Grace Cundiff, an Aged Person, Appellees, v. FREMONT METHODIST CHURCH of Fremont, Iowa, Appellant.
• Court: Iowa Supreme Court

Page 50

73 N.W.2d 50

247 Iowa 127

Clarence ELSE, Guardian of Sim Cundiff, an Aged Person, and Clarence Else, Guardian of Grace Cundiff, an Aged Person, Appellees, v. FREMONT METHODIST CHURCH of Fremont, Iowa, Appellant.

No. 48782.

Supreme Court of Iowa.

Nov. 15, 1955.

Ned P. Gilbert and Charles H. Scholz, Oskaloosa, for appellant.

Tunis H. Klein, Pella, and Bray, Carson & McCoy, Oskaloosa, for appellees.

LARSON, Justice.

This appeal involves an action in equity, brought by Clarence Else, guardian of Sim Cundiff and Grace Cundiff, against the defendant Fremont Methodist Church, wherein the guardian sought to have his wards' deed conveying a remainder interest in the wards' 134 acre farm to the defendant church, subject to a retained life estate in said wards, cancelled and set aside, and title to the property quieted in the wards as against the defendant, upon the grounds that (1) said wards were without sufficient mental capacity to execute said deed and (2) said deed was obtained from said wards by the exercise of undue influence by the pastor and the chairman of the board of trustees of said defendant church. The trial court found that the grantors lacked the requisite mental capacity and that their deed was obtained by the exercise of undue influence, and entered a decree for the plaintiffs. The defendant appealed.

The questions involved on this appeal are (1) whether the appellees satisfied the burden of establishing the claimed lack of mental capacity, (2) whether a confidential relationship existed of such nature as to cast upon the appellant any burden of proof with regard to the claim of undue influence, and if such burden was thereby cast upon the appellant, whether the appellant has met and satisfied that burden, and (3) whether any error was committed in excluding testimony of the grantors' attorney on the grounds of privilege.

Sim Cundiff and his wife Grace, the grantors of the deed in controversy, were 73 and 76 years of age, respectively, at the time of the execution of the deed. They had been married for 40 years, and no children were born as the issue of their marriage. Their only close relatives were Sim's one brother, and Grace's one sister. Sim had been a farmer all his life and he and Grace lived on and farmed a 120 acre farm located approximately two miles northwest of Fremont, Iowa. They also owned the real estate in controversy, said farm being triangular in shape with public highways constituting the north and east boundaries of the farm and a railroad right of way the southwest boundary thereof. In addition, they owned some livestock, farm machinery, bank accounts and government bonds, having a total value of approximately $30,000.

Grace had been a member of defendant church many years, beginning with the time she was in high school and continuing until March 31, 1953, approximately six months after the deed in controversy was executed. She punctually attended church and was by her own statement a devout member. Sim Cundiff also attended this church, but did not become affiliated with it as a member until January 6, 1952.

Dr. Ernest A. Mathews, age 70, a Methodist Church minister since 1907, at the invitation of defendant church, came out of retirement and accepted a call as its supply pastor. He arrived in Fremont in June, 1951, and continued as such pastor until the summer of 1953. Upon arrival in Fremont, Dr. Mathews, seeking to become acquainted with his congregation, called at the Cundiff home in July, 1951, and became acquainted with Sim and Grace Cundiff. Thereafter until Sim sustained a cerebral hemorrhage on July 12, 1952, Dr. Mathews made further visits at the Cundiff home about once a month. A friendly relationship developed between them. On his second or third visit to the Cundiff home, in August or September, 1951, he had a conversation with Sim in the farmyard during which Sim said, without solicitation from Dr. Mathews: 'I want to give $20,000 to the building of a new church and it must be on the highway.' Dr. Mathews commented that the offer was a very wonderful thought for him to keep in mind, and thanked him.

In December, 1951, between Christmas and New Year's Day, Sim went to the bank with which he did business in Fremont and there delivered to his banker a check for $800 with the statement it was intended as a gift to the Fremont Methodist Church building fund, which check was subsequently turned over to the church treasurer. On Sunday, January 6, 1952, a ceremony for the reception of new members was conducted as part of the regular church service, at which time Sim received holy baptism and was received into the membership of the church. On this occasion Dr. Mathews made a public statement from the pulpit disclosing that a gift had been made to the building fund of the church by Mr. and Mrs. Cundiff. Without disclosing the exact amount, he stated that the gift was substantial. Soon after this Dr. Mathews and the church treasurer called at the Cundiff home to express the church's appreciation of the gift. On this occasion Sim stated the gift was 'just a nest egg and he had another quarter.' Dr. Mathews' public announcement was contrary to the Cundiff's desire to avoid publicity, and later on when the Cundiffs made a further gift of $400 to their church, they arranged that their tenant, Louis Meyers, mail his check for that amount to the church without any explanation that the Cundiffs were the actual donors, and for a time the church believed it was a gift from the tenant.

In the spring of 1952, following these gifts to the building fund, the church's trustees determined to canvass the church membership to ascertain whether there was any sentiment for the building of a new church building. In connection with this canvass, Dr. Mathews and W. O. McCurdy, chairman of the board of trustees of the church, stopped at the Cundiff home to interview Sim. Concerning this visit Grace testified: 'S. E. was so concerned, he told them on this committee, 'Let's build a church," but they informed him that the money wasn't available and the general congregation thought it wasn't feasible. Mrs. Cundiff also testified on one occasion during this period Sim said to her: 'Grace, whenever we sell anything, if we have a little more than we need, we will put it on the building fund,' and that there was similar talk for some months prior to the execution of the deed in controversy.

Later, on July 12, 1952, Sim suffered a cerebral hemorrhage which caused a partial paralysis of portions of his body and caused him to be confined to his bed for a period not definitely fixed by the Record. Sim's physical condition improved as time went on and he was able to sit in a wheel chair, and later on was able to get on his hands and knees and crawl, and still later on was able to walk about by leaning and hanging on wires and other objects and without personal assistance from anyone. On September 28, 1952, four days after the deed was executed, Sim did walk from the barnyard to the house. Just before the deed was executed, he was able to be alone in the back yard of his home, exercising under the clothes line. Although his cerebral hemorrhage had affected his ability to talk plainly, he recognized his many visitors, was able to and did raise his hand in greeting, could answer questions by yes and no answers, and by signs and gestures was able to carry on conversations with his visitors and generally could make himself understood to them. His visitors included his neighbors, his farm tenants and their wives, several old family friends, his guardian, Clarence Else, and Mrs. Else, and Dr. Mathews, Mrs. Mathews, W. O. McCurdy, and W. O. McCurdy's daughter-in-law, Mildred McCurdy, most all of whom testified in this trial.

Mildred McCurdy, who moved to the Fremont community in 1949 upon her marriage to Leroy McCurdy, had never seen or heard of the Cundiffs until Sim's baptism on January 6, 1952, on which occasion Sim and Grace were identified as Mr. and Mrs. Cundiff. In March, 1952, she became personally acquainted with them. At Dr. Mathews' invitation she accompanied him and Mrs. Mathews to the Cundiff home for the purpose of playing her harp and singing religious hymns to Sim, she being an accomplished musician. Following this visit, Mildred's calls at the Cundiff home became more frequent and a closer friendship between Grace and Mildred developed after Sim's stroke, during the period from July 12 to September 24, 1952. Grace often called Mildred on the telephone urging her to come to their home, and she came to rely on Mildred to run errands for her, to bring her groceries from Fremont, and to do other similar favors for her.

During this same period Grace began to have difficulties with Sim's brother, Sam Cundiff. Sam's frequent visits to the Cundiff home disturbed and upset Sim, and Grace began to develop a feeling that Sam's motives were improper and he was endeavoring to become Sim's guardian. Sam's actions so dissatisfied her that on the evening of September 21, 1952, she sent her handyman, Archie Fuller, to Fremont to seek out Mildred McCurdy for the purpose of soliciting her aid. Mildred informed Fuller that she was a short-time resident of Iowa, she was not familiar with the Iowa laws, and she therefore did not feel competent to advise or assist Grace. Later on that same evening she received a telephone call from Fuller from his home in Ottumwa. In this call he informed Mildred that he had stopped at the sheriff's office in Ottumwa to discuss the situation and had been advised by the sheriff it was a matter for the Mahaska County authorities, and Grace should seek the aid and assistance of the Mahaska County Attorney, Garold Heslinga. He also stated that the sheriff had suggested it would be well to check into Grace's mental condition. On the following morning Monday, September 22nd, Mildred drove to the Cundiff home and informed Grace of Mr. Fuller's message and the...