In re Estate of Hoyt

• Decision Date: 23 June 1917
• Docket Number: 31311
• Citation: 163 N.W. 430,180 Iowa 1250
• Parties: IN RE ESTATE OF CHARLES J. HOYT. CHARLES E. HATCHER, Administrator, Appellee, v. E. N. FARBER, Administrator, Appellant
• Court: Iowa Supreme Court

163 N.W. 430

180 Iowa 1250

IN RE ESTATE OF CHARLES J. HOYT. CHARLES E. HATCHER, Administrator, Appellee, v. E. N. FARBER, Administrator, Appellant

No. 31311

Supreme Court of Iowa, Des Moines

June 23, 1917

REHEARING DENIED MONDAY, SEPTEMBER 24, 1917.

Appeal from Marshall District Court.--JAMES W. WILLETT, Judge.

THIS was an action in probate for the allowance of a claim in favor of the estate of Mary L. Bradford, deceased, and against the estate of C. J. Hoyt, deceased. The amount claimed was $ 4,000 and interest, and that amount was allowed. The case was tried to the court, without a jury. The administrator appeals.

Affirmed.

E. N Farber, pro se, and Lundy, Peisen & Soper, for appellant.

C. H E. Boardman, for appellee.

PRESTON, J. GAYNOR, C. J., WEAVER and STEVENS, JJ., concur.

OPINION

PRESTON, J.

The claim was based upon the following allegations, substantially: That C. J. Hoyt, during his life-time, purchased for Mary L. Bradford certain real estate; that said Mary L. Bradford furnished the money to make said purchase, and C. J. Hoyt took the title in his own name; that subsequently said C. J. Hoyt sold or traded said real estate for $ 4,000.

It is undisputed that the rights of third parties have intervened so as to prevent an enforcement of the trust in the specific property. A money allowance and order of payment and establishing the claim against the estate was therefore had.

No evidence was introduced by the defendant administrator, except that he offered in evidence, as a part of the cross-examination of one of the witnesses, three certain deeds, one of which was a deed from Theodore F. Bradford to Mary L. Bradford, executed July 2, 1901, conveying the real estate alleged to have been taken in the name of C. J. Hoyt, deceased, at a later date; also, a deed to the same property from Mary L. Bradford to C. J. Hoyt, executed April 5, 1904 (this deed recites a consideration of $ 2,000); and another deed, being a correction deed, dated May 16, 1904, by Mary L. Bradford and her son, Theodore F. Bradford, and his wife, Emma C. Bradford. This gives the description of a part of the real estate.

It is not claimed anywhere in the record nor in argument that C. J. Hoyt, deceased, ever invested any money in the land, or that he paid any of the purchase price. It is not disputed that the land was worth $ 4,000, and that he received that amount of money for it; and there is no claim that this $ 4,000 has ever been paid back.

Appellee contends that the defenses are technical. It is conceded by appellant in argument that most of the questions raised in this appeal pertain to rulings upon evidence, and upon the competency of certain witnesses.

C. J. Hoyt died in 1905, leaving a will, and naming his wife, Myra Y. Hoyt, as executrix. Subsequently, E. N. Farber was appointed as administrator, with will annexed. The will of Mary L. Bradford was admitted in evidence, over the objection by defendant. It is contended by appellant that the will had not been admitted to probate, but the additional abstract shows that it was admitted. Witness identified the signature of testatrix thereto, and stated that it was her last will. The will is very brief, and gives all of her property to Emily C. Bradford, the wife of witness Theodore F. Bradford. The appellant's objection to the will is that, if the will has not been probated, Theodore F. Bradford, being the only heir or child of said Mary L. Bradford, would, under the law, take all the property, and be interested, and therefore incompetent to testify as a witness in this case; and if the will has been admitted to probate, then he is incompetent because he is the husband of the sole legatee under the will, and for that reason incompetent to testify. This objection will be disposed of by what we shall say in regard to the evidence and the alleged incompetency of Theodore to testify.

The evidence which was admitted without objection, and that which was admitted over the objection of defendant, shows, by the conveyance from Theodore F. Bradford to Mary L. Bradford before referred to, and assignment of contracts, etc., that Mary L. Bradford became the owner of the real estate in controversy, subject to a mortgage of about $ 700 to J. T. Hardin. Prior to November 17, 1903, Hardin had foreclosed his mortgage, and the property had been sold at foreclosure sale. On that date, November 17th, Mary L. Bradford borrowed $ 875 of a bank at Marshalltown, giving her note, which was also signed by one Charles Henry. This note was introduced in evidence. On the same date, Charles Henry gave this money to deceased, Charles J. Hoyt, and told him to go to Hardin County and secure an assignment of the sheriff's sale certificate to him for Mrs. Bradford; or, if the purchaser would not assign, to redeem the land. This is testified to by Henry. On the 19th of that month, Hoyt went to Eldora, procured the assignment in the name of Charles Henry, and paid the taxes. A written exhibit in the handwriting of Hoyt shows an amount expended by him of $ 92.50 for railroad fare, taxes, etc., which he (Hoyt) presented on his return and collected. At this time, Hoyt had nothing invested in this real estate, and he had been reimbursed for all expenses, etc. In March, 1904, Hoyt sold or traded this property to Jennie B. Woods for certain property in Union and $ 2,125 in notes, and took a mortgage on the Hardin County land for $ 1,500, payable to his wife. The amount he received for the land in controversy was $ 4,000. A written contract showing this transaction is in evidence; also the mortgage. As stated, the undisputed evidence is that the Hardin County land was worth at that time, $ 4,000. In April, 1904, by the deed of that date before referred to, Mary L. Bradford deeded to deceased, C. J. Hoyt, the Hardin County land. It is the contention of appellee that this deed was executed so that it might straighten up the record for Mr. Hoyt in closing up with Mr. Wood and his wife, Jennie B. Wood. Witness Theodore F. Bradford so testified, over objection by the defendant, but this objection was not on the ground that the witness was incompetent under Sec. 4604 of the Code. The sheriff's certificate under the foreclosure sale was assigned by Henry to C. J. Hoyt, and, on April 16, 1904, a sheriff's deed was issued to Hoyt. The sheriff's certificate had been assigned by the purchase to Henry, who in turn assigned to Hoyt, as stated. The sheriff's deed is in evidence. The original written contract between C. J. Hoyt and Jennie B. Wood for the sale of the real estate is in evidence. It had been left with Theodore F. Bradford.

July 1, 1904, deceased, Hoyt, was taken very sick, and Bradford asked him to assign the Woods contract to his mother, Mary L. Bradford, and quitclaim to her the land described in the Woods contract. Hoyt, at that time, was too sick to sign his name; but he said in the presence of his wife that it was all right, and that his wife knew all about it, and that she would attend to it if he did not get better. This was testified to by witness Bradford, over defendant's objection that he was incompetent to testify to such a personal transaction, and the further objection that the testimony seeks to establish an express trust by parol.

We shall dispose of the first objection later, in referring to the testimony generally to which appellant objects; but as to the second objection, we think it was competent as an admission by deceased, and as having a bearing upon the issue in the case as to whether the property was taken in Hoyt's name with money furnished by Mrs. Bradford, and to show that he recognized that the land belonged to Mrs. Bradford. This circumstance or admission by deceased was also testified to by another witness, Young.

At this time, the Woods contract, the quitclaim deed and an assignment were left at the bedside of Hoyt. Hoyt died the next day, July 2d. In May, 1906, the Hoyt estate sold the Union real estate, and the deed is in evidence; and in August, 1907, Jennie B. Woods deeded the Union real estate to Myra Hoyt, widow of deceased, and on the same date, Myra Hoyt deeded the Hardin County land to Jennie B. Woods. The deeds are in evidence.

The plaintiff contends, substantially, that the transaction in connection with the securing of the assignment of the sheriff's certificate, and the furnishing of the money by her, established a resulting trust in Mary L. Bradford. She also contends that Hoyt was her agent, and, as he had taken the title in his own name, by reason of that fact a resulting trust in her was established. The administrator contends, among other things, that the deeds given by Mary L. Bradford to Hoyt preclude the establishment of any trust as pleaded, and preclude her from showing or establishing any such trust. We do not understand appellant to seriously contend that such deed or deeds by her to Hoyt would have that effect if there was in fact no consideration passing from Hoyt to Mary L. Bradford. The real contention at this point is that it is not competent for a witness to contradict the recitals in a deed and testify that there was no consideration. A witness did testify that there was no consideration. A witness did testify, over objection, that there was in fact no consideration for either of the deeds executed by Mrs. Bradford to deceased, Hoyt, although one recites a consideration of $ 2,000, and the correction deed for a part of the land recites a consideration of $ 1.00. Appellant cites no cases to sustain this contention. Furthermore, we are satisfied, from competent evidence in the record and all the circumstances, that these deeds were for the purpose of enabling Hoyt to carry out the Woods contract.

1. It is contended by appellant that a case of...