"This suit was brought by appellants against the appellee to cancel a deed and to recover the title and possession of an undivided five-sixths interest in two tracts of land of 147.25 acres, respectively, and for rents and partition of said land.
"The plaintiffs are children and grandchildren of Theophilus and Anna Heller, deceased; some of the children being joined pro forma by their husbands, and the minor grandchildren suing by their legal representatives. The defendant is a son of Theophilus and Anna Heller.
"The deed sought to be canceled was executed by Anna Heller after the death of Theophilus Heller and conveys the land in controversy to defendant. This deed recites that it conveys the land by virtue of the power vested in the grantor by the last will and testament of her deceased husband, Theophilus Heller, and in consideration of the sum of $10 cash in hand paid, and for the further consideration of love and affection of the grantor for the grantee.
"Plaintiffs attack the deed on the ground of the lack of authority in the grantor under the provisions of the will of Theophilus Heller to convey the land for the purpose and consideration recited in the deed.
"In reply to this, the defendant's answer avers: `That said deed was made to appellee by the said Mrs. Anna Heller for and in consideration of $10 cash and love and affection that Mrs. Heller had for her son, Moritz Heller, and, while not so recited in the deed, yet the same was also executed for and in consideration of the services to be rendered and for services appellee rendered to his mother, Mrs. Anna Heller, surviving wife of Theophilus Heller, deceased, for the past 16 years, in assisting the said Mrs. Anna Heller in managing the community estate of herself and husband, which consisted of about 2,000 acres of land, of which 500 or 600, acres were in cultivation, and assisting his mother in caring for her stock and all other property belonging to said community estate of Theophilus Heller, deceased, and Anna Heller, all of which property was of such nature as to render it impossible for Mrs. Anna Heller, surviving wife of Theophilus Heller, deceased, to care for in her own proper person, and she was compelled to call to her aid some one to assist her in caring for said property and managing said estate, and she did call to her assistance this appellee, who continuously for the past 16 years prior to the death of his mother, the said Mrs. Anna Heller, looked after the wants of his mother and the management of the community estate of his mother and father, both in renting the premises and keeping the same in repair and in caring for the stock belonging to the community estate of his mother and father, and that the mother of this appellee, the said Mrs. Anna Heller, surviving wife of Theophilus Heller, deceased, did, on the 3d day of April, 1916, execute and deliver said deed to said 147 acres of land to this appellee in consideration of the services that this appellee rendered for his mother, and the services to be rendered by this appellee for his mother, which services were made necessary during said 16 years aforesaid for the assistance of the said Mrs. Anna Heller, now deceased, in caring for herself and the property of the community estate of herself and deceased husband, and were of the reasonable value of $500 per year. That the appellee, Moritz Heller, did render the services which were part of the consideration for which said deed was executed and did assist his mother in preserving and caring for the community estate of herself and husband up to the time of her death.'
"The trial in the court below without a jury resulted in a judgment in favor of the defendant.
"The material facts disclosed by the record are as follows:
"`Theophilus Heller died in 1891, and his wife, Anna, in 1919. Prior to his death, Theophilus and Anna Heller executed a joint will, the provisions of which disposing of the property of the respective testators are identical. by this will Theophilus Heller, after directing the payment of his debts and the expenses of his last sickness and funeral, thus disposes of his property.
"`"III. All the then remaining property, be the same real or personal property, I hereby devise and bequeath to my wife, Anna Heller, née Munke. She shall have and hold the same together with all the rights and appurtenances thereto in any wise belonging during her life or until she may marry again, in which case she shall make two equal parts of the then remaining property, one to be styled her and the other to be styled my part, and she may make such disposition of her part as she may deem fit, but my part shall be equally divided among the children of our marriage, viz. Theophilus Heller, John P. Heller, Moritz Heller, Margaretha Heller, Agatha Heller, and Thekla Heller.
"`"IIII. To the executrix of this my part of this my last will and testament I appoint my wife, Anna Heller, née Munke, and I do hereby especially ordain and decree, that she shall not be held to give bond or other security whatever for the carrying out and due performance
of the disposition of this agreement and my last will and testament."
"`These provisions are followed by identical provisions by which Anna Heller disposes of her property.
"`The remaining provisions of the will are as follows:
"`"IX. After the demise of both of us, Theophilus Heller and Anna Heller, wife of Theophilus Heller, and neither of us having entered into a second marriage, all of the then remaining property, both real or personal property, shall be equally divided between our children, and if any of our children or child shall have been married and subsequently demised the offsprings of such child or children shall receive the share due to such child or children, but in no case shall the surviving husband or wife of such child receive any benefit of our property, but the same shall be for the benefit of the said offspring exclusively.
"`"X. The survivor of either of us, Th. Heller or A. Heller, née Munke, shall have the right to sell or otherwise dispose of any part of our community property and invest the proceeds of such sale or disposition as he or she may think best.
"`"XI. After the demise of both of us the honorable county probate court having jurisdiction shall appoint an executor with the will annexed to carry into execution the provisions of this will and testament."
"`At the time of the execution of this will and at the time of the death of Theophilus Heller, he and Anna Heller owned as community property 2,000 acres of land, of which the land in controversy is a part, and in addition thereto community property consisting of cattle and other personal property of considerable value.
"`Upon the death of Theophilus Heller in 1891, Anna Heller had his will, before set out, probated in the county court of Fayette county, qualified as executrix thereunder, took possession of all of the community property, and held and enjoyed the same exclusively until her death in 1919.'
"Upon the issue of the consideration for the execution of the deed, Mr. E. R. Vogt, who wrote the deed, testified: "`I wrote the deed sought to be canceled in this case for Mrs. Heller. At the time I wrote the deed I was in the home of Mrs. Heller at Ammansville. Squire Fietsam was there with me. Mrs. Heller told me that she wanted me to write the deed, and I asked her what the consideration would be, and she said that she wanted to deed the 147 acres of land in question to Moritz Heller for what she owed him for his services in looking after the Heller estate for her from the time her son Theophilus Heller, Jr., died, up to the time of writing this deed. I told her that I could not write that in the deed, but that a consideration of $10 and love and affection would be a good consideration, and I wrote that in the deed, and I am the author of the consideration stated in the deed; that is, $10 and love and affection. I am responsible for putting that in there. At the time the deed was actually executed, she told me that she was executing the deed for services that Moritz had rendered to her during these years. She said to me that she owed Moritz Heller for his services during these years and that she wanted to reward him for what she owed him for said services during all those years since the death of Theophilus Heller, Jr., and assisting her in caring for the community estate of her deceased husband and self. The true consideration for the execution of the deed by Mrs. Heller to her son, Moritz, was the services of Moritz Heller that he performed for her in looking after the entire Heller farm, which consisted of something like about 2,000 acres of land, as stated by her at the time. As to what kind of work, she said it was everything, that he was the only one of the children who did anything for her.
"`There was not anything said at that time as to Moritz Heller continuing the services; but the consideration was the services that he had performed in looking after the entire property.
"`As to the number of acres of land in cultivation, there were 10 or 12 tenant houses; and I don't know but there was something over 1,800 acres in the bottom tract, possibly between 600 and 800 acres in cultivation; I have never surveyed that separate. These rent houses and this farm that I speak...
