Hartje v. Borstelman

• Decision Date: 29 September 1920
• Docket Number: No. 33159.,33159.
• Parties: HARTJE ET AL. (PETERS ET AL., INTERVENERS) v. BORSTELMAN.
• Court: Iowa Supreme Court

179 N.W. 88

HARTJE ET AL. (PETERS ET AL., INTERVENERS)

v.BORSTELMAN.

No. 33159.

Supreme Court of Iowa.

Sept. 29, 1920.

Appeal from District Court, Mills County; J. B. Rockafellow, Judge.

Action in equity brought by plaintiffs against defendant for an accounting, and in which the executors intervened. Defendant had filed claims against the executors of the estate, which were consolidated with the equity case, and by agreement all issues and all matters of dispute were submitted, to the end that everything might be settled. After a full hearing in equity, the trial court disallowed all defendant's claims against the executors except $200 and interest, and upon the accounting found that there was due from the defendant $11,486.17, for which judgment was rendered in favor of the executors, with 6 per cent. interest after the date of the judgment, which was May 20, 1919. The defendant has appealed. Modified and affirmed.W. S. Lewis, of Glenwood, for appellant.

J. J. Hess, of Council Bluffs, and Genung & Genung, of Glenwood, for appellee plaintiffs.

H. M. Logan, of Glenwood, for appellee interveners.

PRESTON, J.

The plaintiffs and the defendant are children and heirs of Mary Hartje. The defendant is her son, but not by the father of the plaintiffs. Defendant claims to have received some money from his father a good many years ago. Mary Hartje was divorced from her husband in 1902, and was awarded about 180 acres of land, but she was required to pay her husband $2,500, which was made a lien on the land. Eighty acres of the land, the proceeds of which are in dispute, was sold in 1909, and the 100 acres after her death. The land was rented out until the 80 was sold, and the remainder was rented out until her death, except that a part of the time she retained about 35 acres, but this was for only one year, as we understand the record. The old lady died February 1, 1916, at the age of 76. She was a German lady, uneducated, and did not read or write the English language, or at least but little. She seems to have had but little business experience. She aged rapidly the last several years of her life, and for about 3 years prior to her death she was substantially helpless, and had to be lifted from the bed into a wheel chair, and for a year had to be fed. She was a great care, and, according to the evidence, was like a baby. The bedclothing had to be washed every morning, etc. The defendant was unmarried, and lived with his mother from the time of the divorce, and perhaps before, until her death. The last 3 years, one of plaintiffs, a daughter, and her husband, also lived with them, and helped care for the old lady. This daughter and her husband moved into the home for the purpose of caring for the mother, and she claims to have done the larger part of caring for her mother, but she admits that defendant was good to the old lady, and that he helped care for the mother, lifting her from the bed, washing the bedclothes every morning, etc. This witness says, however, that defendant was away evenings generally, and took a trip to the Springs for a week or two, and was perhaps absent at other times occasionally. The mother died testate, and by her will she divided the property equally between her children, except that the daughter who had cared for her was given $1,000 more than the others, and it seems to be conceded in the record that this was intended to be in payment for her services. Defendant and his mother, and later the other two, lived together as one family, the mother furnished the money to keep up the home. Defendant paid no board and received no wages. He had no business. From the time of the divorce, in 1902, until about January 1, 1914, defendant was the agent for his mother, receiving the rents, proceeds of the farm, and other moneys. He signed his mother's name on certificates of deposit made out to her, the proceeds of which certificates ultimately appeared in his own account. He kept no books and no account. The heirs testify that at different times they requested him to do so. He admits he was short, and that he was unable to account for some of the money, and, according to the testimony of some of the plaintiffs, he said he did not have to. He did not turn over anything to one of the sons-in-law, who took his place as agent, about January 1, 1914, nor did he turn over anything to the executors. It appears that the old lady was indebted to defendant, and had given him her notes and indebted perhaps to smaller amounts to other persons, and to pay these debts was one of the reasons given by her for selling the 80 acres. Defendant claims to have loaned his mother $2,500, or $2,800, to pay the alimony awarded. The plaintiffs put in testimony tending to show admissions by the defendant that he had about $5,000 of the proceeds of the land sale. But the trial court charged defendant with all the proceeds of the sale of the land, and gave him credit for the indebtness due him, so that the difference ultimately charged against him on the land account was somewhat less than $5,000. The defendant claims to have loaned his mother money to build a house on a lot owned by defendant, or one of plaintiff sons-in-law, in the town of Mineola, after they moved from the farm. This note is dated June 9, 1910, for $2,900, signed by his mother, due in five years, with interest at 5 per cent., and indorsed, interest paid to June 19, 1914. Defendant now claims to own the house. It appears that a few days after the execution of the note just referred to, and on June 23, 1910, she executed a bill of sale to defendant of the house. The deed recites that it is in consideration of love and esteem and $1. We do not understand appellees to dispute defendant's ownership of the house. It appears that the bill of sale was executed at the time she executed her will, or, at any rate, the bill of sale was before the parties at that time. The defendant was present at the time the will was drawn. As we understand it, the will was drawn by one of the parties who was afterwards named as one of the executors. There is evidence that she said the house did not belong to defendant until her death; that she had the use of it until her death. The party drawing the will testifies that she told him to keep the bill of sale until her death, and then to deliver it to the defendant. This he did a few days after her death, and it was placed on record by the defendant. The claim is, as we understand it, that the house was a gift. It may be that she intended this as a payment for his services in taking care of her, and for the services for which defendant later filed a claim of $3,000 against the estate. However, the evidence does not so show. The evidence is incomplete, and the record is not clear at some points.

In October, 1916, plaintiffs brought this action for an accounting, alleging some of the matters before set out, and, further, that for a period of about 8 years deceased had been incompetent to transact any business; that her business had been in charge of defendant; that she relied wholly upon defendant in the conduct of her business; that defendant had great influence over her, and was able to procure her to do such things as he desired; that on the sale of the land defendant received about $5,000, which was used by him, and handled as his own, and for his own purposes; that defendant received the rents, which on the 100 acres approximated about $500 per year, which defendant has used; that plaintiffs, together with the defendant, are entitled to share equally in all moneys found to be due from defendant subject to any valid debts or claims against the estate of deceased; that the note in defendant's possession which he claims was given for money loaned to build the house is without consideration, and was procured by defendant from his mother when she did not know, or appreciate, what she was signing, and was secured by undue influence, and that therefore it is wholly void, anl plaintiffs ask that it be canceled.

Answering, defendant admits certain of the allegations and denies others. He admits that his mother died testate, and that her will was admitted to probate; denies her incompetency and his alleged undue influence over her; admits the sale of the farm, but says that she received the consideration; denies that he received rents in the sum of $500 annually, and denies that he received and used the said rents as his own; says that she controlled the rentals, and that whatever defendant did was under the direction and at the request of his mother; alleges that the note in his possession, executed by her, was given for a valid consideration, and for an indebtedness due him.

February 12, 1918, the executors filed their petition of intervention, stating their interest, and asked the court to finally adjudicate all matters involved in each and all of said claims, and that the decree and findings may finally settle every matter involved, and be binding on all parties, heirs, and claimants, in order that the estate might be finally closed and settled. As before stated, the cases were consolidated, and it all seems to have been without objection on the part of defendant, and as a matter of fact he tried out his claims against the estate. All parties seem to have tried the case upon the theory that every question involved was being submitted, and we think, from the record and the method of procedure, that such was...