Keating v. Keating
| Decision Date | 17 November 1917 |
| Docket Number | 31295,31336 |
| Citation | 165 N.W. 74,182 Iowa 1056 |
| Parties | CHARLES A. KEATING, Appellant, v. WILLIAM H. KEATING, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED FEBRUARY 15, 1918.
Appeal from Mahaska District Court.--JOHN F. TALBOTT, Judge.
ACTION in equity to remove trustee, and for an accounting. There was a decree for the defendant, and plaintiff appeals.--Affirmed on defendant's appeal; reversed on plaintiff's appeal.
Reversed on plaintiff's appeal; affirmed on defendant's appeal.
Henry & Henry, for appellant.
McCoy & McCoy and W. H. Keating, for appellee.
William Keating, a resident of Mahaska County, Iowa, died in the year 1894, survived by several children, among whom the eldest William H. Keating, was a practicing lawyer, and the youngest, Charles A. Keating, was at that time residing at home with his father. A few months before his death, he made a will. The instrument was prepared and drawn by his son William H. Keating. In one of the opening clauses of the will, the testator says, in substance, that he has already made what he deems suitable provision for his children other than Charles, and then proceeds with a devise for his benefit, in words as follows:
William H. Keating was also made executor of the will, without bond. After the testator's death, William H. Keating assumed charge of the estate, settled its affairs, and received his discharge as executor. From that time until the beginning of this suit, he has continued to hold the title to the land devised to him in trust, as aforesaid, and during that period has exercised control over the land, leasing it, paying taxes and other expenses. From time to time, he has paid sums of money to Charles, as representing income or rents of the property.
In October, 1914, Charles began this suit in equity, alleging, in substance, that he is a careful and prudent person, within the meaning of the trust created by his father's will, and capable of taking proper care of the property devised for his benefit; that he has demanded of the defendant a conveyance of said property to himself and a termination, settlement, and accounting of and concerning the trust estate; and that defendant has arbitrarily and wrongfully refused said demand, and declared his purpose to permanently retain said title in himself, or convey it to his own daughter.
The defendant admits the will of his father, as stated, but denies that the purposes of the trust created thereby have been accomplished, and alleges that plaintiff is both physically and mentally incompetent to manage and properly care for the property. He further denies the jurisdiction of the court to control his discretion with respect to the trust, and insists that, under the terms of the will, he has full and uncontrolled right and authority to administer said trust as to him shall appear just and right.
Other alleged facts are pleaded in the petition and answer, to which, so far as material to the determination of the rights of the parties, reference will be made in the further progress of this opinion.
The evidence on plaintiff's part tends to show that, for a period of several years, beginning before his father's death, he suffered more or less from ill health, which he attributes to an injury to his back, and to the effects of a sun-stroke. During the years 1893 and 1894, he attended school to some extent, and did some work as a canvasser in Iowa and Illinois, and followed this with six months' attendance at Chadwick College. In 1897, he went to Kirksville, Missouri, for osteopathic treatment, and while there, pursued the study of osteopathy. In the following year, he returned to Oskaloosa, where, he says, he asked the defendant to convey the land to him. Defendant was then about to leave home, for service in the Spanish War, and, according to plaintiff's story, said to him that the matter was so fixed that, in case anything should happen to himself, plaintiff would have the farm without any trouble, and that plaintiff was entitled to the farm and should have it. The defendant testifies, in substance, as we understand him, that at this time he did leave the charge and oversight of the property in plaintiff's hands, and delivered to him quite an amount of notes and securities, with authority to collect. Soon after this, plaintiff settled in Marshalltown, where he practiced osteopathy for two years or more. During this period, he married, and since that time has, with his wife, maintained a home. The marriage was displeasing to the defendant. In 1900, plaintiff attended and graduated from the Still College of Osteopathy at Des Moines, where, excepting a brief return to Marshalltown, he has ever since practiced his profession. He claims to have earned a respectable living for himself and wife, is carrying $ 3,000 of life insurance, and has a savings fund of several hundred dollars in the bank. He says, and of this there appears to be no contradiction, that he is not in debt. In support of his claims, he puts in evidence the testimony of his landlord, who has been his next-door neighbor for several years, and knows him quite intimately, and of others who have known and employed him in a professional capacity, merchants and grocers with whom he has dealt for years, physicians who have treated him, and officers of insurance associations of which he is a member, all of whom know him personally and have opportunity to observe his character and qualities; and all unite in speaking of him as a man not addicted to extravagance or bad habits. He is a member in good standing in prominent fraternal orders, and appears without question to have general recognition as a man of good repute and fair average mental capacity. As opposed to this, there is the testimony of no witness who claims to speak from personal knowledge or observation, except the defendant himself; but he offers the testimony of several physicians, who, in answer to hypothetical questions, based almost entirely upon the assumed correctness of statements made in testimony given by the defendant, were permitted to answer that, upon such assumption, the expert "would say the plaintiff is not a careful or prudent man," or was "not of sound mind and not a careful and prudent man."
Of the value of this expert evidence, we have only to say: First, that it is at least very doubtful whether a medical expert, however learned, is any better qualified than the court or juror to declare that any given man is a careful and prudent person; and second, that the hypothetical question in this case is loaded with so much matter of assumed fact which is not established by the evidence that the answers thereto are entitled to little consideration.
Coming, then, to the testimony of the defendant himself, who alone undertakes to testify to the plaintiff's physical and mental incompetence, his theory of his rights as trustee is not without value in construing and weighing his statements with respect to the disputed facts. This is illustrated in the following excerpts from the record. Among other things, he says:
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