Hopp v. Rain, 49335
| Decision Date | 11 February 1958 |
| Docket Number | No. 49335,49335 |
| Citation | 88 N.W.2d 39,249 Iowa 891 |
| Parties | Arthur A. HOPP and Hazel M. Kaven, Appellees, v. Ella A. RAIN and Robert A. Rain, Appellants. |
| Court | Iowa Supreme Court |
Smith, Peterson, Beckman & Willson, Council Bluffs, for appellants.
White & White, Harlan, for appellees.
Plaintiffs in an action in equity sought to impress a trust upon certain land now held in the name of the defendant Ella A. Rain. Prior held land had been purchased with the proceeds of money left in trust with a bank by the will of the grandfather of the plaintiffs but which was turned to Ella A. Rain, formerly Ella A. Hopp, the lifetime beneficiary, by reason of a release given to the trustee and signed by Ella A. Hopp and her children at the time of the filing of the final report of the bank as trustee. The plaintiffs' claim is based on a purported oral agreement between the mother and the children relative to the holding of the property originally purchased and consequently the subsequently acquired real estate. The trial court found for the plaintiffs and held that trust had not been terminated. The defendants have appealed.
John J. Mass died testate on May 10, 1915. His will made provision for leaving a one-ninth share of his estate to the Silver City State Bank, as trustee, with the provision the income therefrom should be paid to his daughter, Ella, during her lifetime. It was further therein provided that '* * * after the death of my said daughter Ella Hopp, I give, devise and bequeath the principal of said one-ninth part or share of my said residuary estate to be equally divided, share and share alike, between the children of my daughter Ella Hopp.' The plaintiffs, Arthur A. Hopp and Hazel M. Kaven are the two children born to Ella A. Hopp-Rain and her first husband, now deceased, Frank Hopp.
In 1934 the Silver City State Bank was discharged as trustee by reason of an application apparently made in the probate proceedings in the estate of John J. Mass. The application was entitled 'Trusteeship of Ella Hopp, Under the Will of John J. Mass'. The application was made by Ella A. Hopp and the verification was signed and sworn to by the applicant and by Arthur A. Hopp and Hazel M. Kaven, her two children. We deem it of importance in the determination of the present litigation and it is substantially set out in full. 'Now comes Ella Hopp, the above named person in the Trusteeship of Ella Hopp, and shows to the Court as follows:
'That said funds are held under Will of her father John J. Mass, admitted to probate * * *; That the funds at last report, on March 29, 1934, amounted to $8,301.19, in hands of Trustee, Silver City State Bank and same cannot be invested to earn above 3% and same are wholly unproductive to her, by reason of such low rate of income, after taxes and expenses are paid. Further, that all the children of Applicant are now past 21 years of age, which Children, two in number are as follows; Arthur A. Hopp, age 25 years. Hazel M. Kaven age 23 years, and married being all the children.
'That age of applicant is 47 years, and both said children join in this Application and agree to all the statements herein.
'Petition(er) says that they desire to invest said funds in farm lands, and that it (is) much better for all concerned that said funds should be ordered paid to her for such investment and without restriction, all the children agreeing to the same. That they can use the funds to better advantage, and to hold the funds as now situated is almost to render them of no value whatever to any of them. That the Applicant and family now reside at Minden Iowa but desire to use the funds for the purchase of farm and for their use during her lifetime.
'Wherefore; Petitioner, prays an order that Trustee shall pay said funds to her, without further limitation or delay, and that she be allowed to receive the same for the use indicated. Dated on this 2nd day of August, 1934. Ella A. Hopp, Petitioner; (Emphasis supplied.)
'Ella Hopp; Arthur Hopp, and Hazel M. Kaven, being each first duly sworn on their oath sats (states) that the allegations in the foregoing Application contained are a1(1) true as they verily believe. Further, said Arthur A. Hopp and Hazel M. Kaven, approve the Application and join in the prayer thereof, and agree as all the children of Ella Hopp that she shall be permitted to at once receive all of the funds held by the Trustee and we release the Trustee from any claim therefor, now or at any future date, (Signed) Hazel M. Kaven, Arthur A. Hopp, Ella A. Hopp.
'Subscribed in my presence and sworn to before me by Ella Hopp, Arthur A. Hopp and Hazel M. Kaven, on this 2nd day of August, 1934.
Mills County, Iowa.'
On August 16, 1934 one of the judges of the district court in and for Mills County, Iowa, signed an order approving the application heretofore set forth which order is in part as follows:
'It is therefore Ordered, Adjudged and Decreed, that the Silver City State Bank, as Trustee of Ella Hopp, aforesaid, be and said Trustee is authorized and ordered to pay the funds on hand, $8,301.19, on hand at the last report, with any additions thereto or proper deductions therefrom for cost and expenses, to Ella Hopp, and on completion of said payment and filing of her voucher and receipt for the same, the trustee shall then be finally discharged, all former reports and acts approved, the trusteeship closed and all bonds of the trustee forever released and finally exonerated.'
On August 18, 1934 the Silver City State Bank, as trustee in the trusteeship of Ella Hopp filed a final report showing a net balance then on hand of $8,214.19. In the final report of the bank there is incorporated the following: 'Trustee, following the order and decree * * * above referred to and relying thereon, pay the full sum remaining, as above shown to Ella Hopp, and which sum is received by her in final settlement and to close the trusteeship finally and forever.'
On the same paper and following the report of the Silver City State Bank, as trustee there is set out the following: 'We, the undersigned, Ella Hopp, under above Trusteeship, and Arthur A. Hopp and Hazel M. Kaven, the latter two persons being all of her children, each hereby acknowledge full and final payment from the Silver City State Bank as Trustee, of all the funds and property held by said Trustee, under the Will of John J. Mass, deceased, wa(i)ving all notice of said Final Report.
'We each approve said payment, request that the same be made to Ella Hopp and waive all our rights, present or future to any of the said funds and ratify the payment and settlement above shown, in every respect, waiving all claim to said funds or any part thereof, rpesent or future interest or right or possibility therein. The intention being to fully settle the Trusteeship finally close the same and forever release the Trustee from any liability or claim thereto by us, or either of us and from any person claiming by or from us or either of us, the sole heirs the only children of Ella Hopp.
'Dated on this 18th day of August, 1934.
'(Signed) Ella A. Hopp. Hazel M.
Kaven Arthur A. Hopp'
Receipt verified. (Emphasis supplied.)
Thereafter on September 27, 1934 an order approving the final report of the Silver City State Bank, as trustee, in the trusteeship of Ella Hopp was signed by one of the judges of the district court in and for Mills County, which is in part as follows: 'The Court adjudges taht full payment has been made to Ella Hopp of all funds held by the Trustee in said Matter, under Order of Court heretofore made for such payment, and that final voucher, receipt and waiver of notice from Ella Hopp and all of her children, is on file and same is approved and adjudged to be full notice, waived by each of them with request for the approval of said report;
'It is therefore; Ordered, Adjudged and Decreed That said Final (report) be and the same is fully approved and the settlement therein shown; The Trusteeship is hereby closed, the Trustee discharged with release and complete exoneration of all bonds herein given, and final discharge of the Trustee from any liability under said Trusteeship.'
On or about February 25, 1935 Ella Hopp and her then husband Frank Hopp purchased and took title to a 112 acre farm located near Harlan, Iowa for a consideration of $14,005. This farm is referred to in the record as the Juhl farm. At or about the same time they gave a mortgage to the Shelby County State Bank for $6,000 apparently to cover the balance due on the farm. This land was rented by Mrs. Hopp and her husband to their son Arthur, one of the plaintiffs in the present action. The rental was on a 50-50 share basis. The parents paid the taxes, insurance and the cost of the necessary improvements to the buildings. On March 2, 1940 the mortgage referred to was released and on or about the same time Ella and Frank Hopp sold 30 acres of the 112 acres to Arthur Hopp, one of the plaintiffs, for the sum of $6,700. A new mortgage for $6,000 was given to one Wise covering all the land in question and Arthur Hopp assumed this mortgage as a part of his payment of the purchase price of the 30 acres. He continued to rent the remaining 82 acres from his parents until 1947. On March 2, 1945 the Wise mortgage was released and the son Arthur received a warranty deed to the 30 acres. On July 5, 1947 the 82 acres were conveyed by Ella A. and Frank H. Hopp to Arthur and Jennie Hopp. On the same date Frank H. and Ella A. Hopp purchased and took title to another piece of land which contained 162 acres. This land is referred to in the record as the Churchill land. The purchase price for this land was $26,500. There was applied on this purchase price $2,500 received from the sale of other property owned by Frank and Ella Hopp near Minden, Iowa. A mortgage for $8,000...
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