Leonard v. Leonard
| Decision Date | 08 February 1944 |
| Docket Number | 46428. |
| Citation | 12 N.W.2d 899,234 Iowa 421 |
| Parties | LEONARD et al. v. LEONARD et ux. |
| Court | Iowa Supreme Court |
C. B. Stull and E. D. Stull, both of Des Moines for appellants.
Harold Newcomb, of Des Moines, for appellees.
Domenic Lunardi (also known as Leonard) was a coal miner both in Italy and the United States and a naturalized citizen of this country. He and his wife, Cleonice, were the parents of appellants, Frank Leonard and Geno Leonard, and of the appellee Leo Leonard. The parents were hard working and saving and in 1927 became the owners of the real estate in controversy, the deed being taken in the names of Domenic Lunardi and Cleonice Lunardi. They occupied the premises as a home until the death of the mother on January 2, 1942 and thereafter Domenic, the father, resided there until his death at the age of 74 on August 16, 1942.
On or about January 8, 1942 Domenic Lunardi, described in the deed as "also known as Domenic Leonard" executed a warranty deed conveying the above-mentioned real estate to Leo Leonard and Violet Leonard, husband and wife for the expressed consideration of one dollar and other valuable consideration, with the reservation to Domenic Lunardi of a life estate. The deed was signed with the mark of Domenic Lunardi and his signature was witnessed by Robert L. Parker, M. D., John Balducchi and Henry F. Grant. It was acknowledged before George Mitchell Faul, notary public, carried cancelled United States revenue documentary stamps in the proper amount, and was recorded on January 9, 1942.
On December 22, 1942 appellants filed their petition in the District Court of Polk County asking that said deed be set aside and for such other relief as was just and equitable in the premises.
The son, Frank, is married and left home at the early age of eighteen. Geno, the other appellant, lived at the home of his parents until February, 1941, at which time he married, and he and his wife resided with his father and mother for a time. The youngest son, Leo, appellee herein, was married in 1935 and he and his wife lived with his father and mother from that time until September, 1940 when Leo started to work for the State Highway Patrol and was stationed at various places over the state. After the death of the mother in January, 1942, Leo and his wife returned to Des Moines and lived with the father at the family home. Geno and his wife were also living there at the time but moved out about May 5, 1942, and Leo and his wife, Violet, continued to live there up to the time of the trial.
Some time prior to the death of the mother, Domenic Lunardi had a severe stroke and thereafter until the date of his death was unable to work because of the paralysis which affected his right arm and side and somewhat impaired his vision and hearing. There is contradiction in the evidence as to whether he was seized with a second stroke on the day following the mother's funeral. Up to September, 1940, when Leo and his wife moved from Des Moines, Violet assisted her mother-in-law in the care and work of the household and garden and they appeared to have been on good terms with each other. The young couple contributed to the expense of the household. Upon their return after the mother's death they took care of the father, who was then bedfast, and continued to contribute. It also appears that during the time they were away from Des Moines they sent various sums of money home to the father and mother to help with their care and living expenses. There is no doubt in our minds that the care given the father was excellent and that a great deal of the family expense, including doctor bills, devolved upon Leo.
After the father became incapacitated, and on January 6, 1941, the three boys, with the wives of Leo and Frank, executed what they styled an agreement, in which they described the property owned by the father and mother and attempted to provide for the disposition and ownership of the same upon the death of either of said owners, and it was agreed that upon the death of either the survivor should have all of said real estate with full ownership and control. The agreement quitclaimed and conveyed unto the survivor all of the children's right, title and interest in said real estate and constituted the survivor the owner in fee simple. This agreement was acknowledged and filed of record.
Appellants devote considerable time to the circumstances surrounding the execution of the deed to Leo and his wife. We have carefully read not only the abstract, but the transcript of the testimony. As stated, the witnesses to the deed were the family doctor, Robert L. Parker; John Balducchi, who was a family friend both in Italy and in this country; and Henry F. Grant. These parties, with the exception of Henry F. Grant, who is in the armed forces, were witnesses at the trial, together with George Mitchell Faul, an attorney of Des Moines, and the notary public before whom the deed was acknowledged. We find nothing in the testimony of any of these witnesses to show any compulsion; nor is there any testimony to support any claim that the execution of the instrument by Domenic was not of his own free will. We do not find any circumstance which would indicate any undue influence. The doctor testified that the records of the account for his services for the parents were kept on Leo Leonard's account. He stated that he was present when all the witnesses and the notary signed the deed, and that the notary assisted in guiding Domenic's hand when he affixed his mark on the signature line of the deed. That the signing of the deed took place on the evening of January 8, 1942 and at that time he observed the condition and physical being of Lunardi and Domenic appeared to be in possession of all of his faculties. That the doctor saw Domenic at various times thereafter and although the patient spoke with difficulty he seemed to understand what was said to him, and in his opinion at the time of the signing of the deed Domenic was familiar with the contents of the paper before he signed it.
Domenic's old friend, Balducchi, testified that on January 7, 1942 he was requested by Domenic to come to the house the next evening. This he did and was present and affixed his signature to the deed as a witness in the presence of Dr. Parker, Mr. Faul and Mr. Grant. He testified Domenic made the cross on the signature line of the deed. He said he had talked with the old man, and Domenic told him he wanted to sign that paper and wanted him as a witness. That he explained to Domenic in Italian and read the deed over and saw Mr. Faul put his name and seal on the instrument. He stated he understood what Domenic was saying to him and that he himself was careful about putting his name on the paper. The witness stated, That Domenic spoke some words, but not very many, and a person had to be used to hearing him talk to understand him. The witness further testified that on January 7th Domenic did not seem to be any different than ordinary. That prior to the signing of the deed Mr. Faul read the paper over to Domenic and that when he, Balducchi, was asked to sign the instrument by Domenic the latter told him he wanted to leave all the property to Leo to take care of him as long as he lived.
Mr. Faul, who was well acquainted with the family, and a friend of Leo and Domenic, testified that he was present at the execution of the deed. That Mr. and Mrs. Lunardi had talked with him about their property some time before that date and they said it would be all right if they left the property to Leo and his wife because Leo had taken care of them for so many years and now they were disabled. That he read the deed to Domenic and Domenic shook his head, indicating that he did not understand. That thereupon the witness called upon Balducchi to explain it in Italian and that Domenic answered in Italian and from his gestures and motions the witness would say he responded in the affirmative. That he questioned Dr. Parker as to the competency of Domenic to execute the deed and received the answer that there was no reason why not, as the man's trouble was physical rather than mental. That when asked if he wanted to execute the deed, and if he was giving this deed to his son and daughter-in-law because they were going to care and provide for him, Domenic indicated the affirmative by a nod of the head. That the witnesses took about an hour to explain the significance of the transaction to Domenic and to be sure that he had a complete understanding of why he was doing it. The witness then described the execution of the deed and how he assisted in guiding Domenic's hand in making the mark. This was the substance of the testimony as to the execution of the instrument in question. It is suggested in argument by appellants that the grantor of the deed was speechless and helpless, but we do not so understand the testimony. We find...
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