Luebke v. Freimuth

• Citation: 248 Iowa 58,78 N.W.2d 473
• Decision Date: 18 September 1956
• Docket Number: No. 48978,48978
• Parties: Luella LUEBKE et al., Appellees, v. William H. FREIMUTH et al., Appellants.
• Court: United States State Supreme Court of Iowa

Page 473

78 N.W.2d 473

248 Iowa 58

Luella LUEBKE et al., Appellees, v. William H. FREIMUTH et al., Appellants.

No. 48978.

Supreme Court of Iowa.

Sept. 18, 1956.

Rehearing Denied Nov. 16, 1956.

A. J. Braginton, Manson, and Arthur H. Johnson, Fort Dodge, for appellants.

Breen, Breen & McCormick, Fort Dodge, for appellees.

SMITH, Justice.

Plaintiffs are the administrator and all the heirs (except defendant William H. Freimuth) of the estate of Fred W. Freimuth, who died intestate on or about June 13, 1948, a resident of Manson, Calhoun County, Iowa. He was a widower and left no direct heirs.

Decedent was the eldest of ten children. Five survied him. His brother, William H. Freimuth (Bill) and wife, Anna, are the principal defendants here. Their daughter, Charlotte, and son-in-law, Leslie Arndt, are the other defendants.

The petition was filed March 1, 1951. It sought cancellation of a deed and bill of sale executed by Fred to his brother, William, August 30, 1946, in Sauk County, Wisconsin; and an accounting and recovery of bank accounts, rents, etc., all alleged to have been obtained under 'fiduciary or confidential' relationship and while decedent was incompetent.

There is a Record of 1,400 pages (in four volumes) the pleadings alone occupying 118 pages and composed largely of evidentiary material, with no limitation to ultimate facts which are usually deemed the proper subject matter of pleadings. Trial courts have much greater power under our Rules than they ordinarily assert. They might save themselves and us much time and labor by exercising it more often. This is true in the matter of pleadings, 58 I.C.A.Rule 81, R.C.P.; Ragsdale v. Church, 244 Iowa 474, 55 N.W.2d 539; and even more importantly is it true in the matter of condensing the Record on appeal, Rule 340, R.C.P.; Lange v. Myers, 244 Iowa 1316, 60 N.W.2d 526; Thorne v. Reiser, 245 Iowa 123, 126 et seq., 60 N.W.2d 784, within proper bounds. We know of course the difficulty of condensation but attorneys and courts alike can better serve clients and the cause of justice by practicing it more freely. Manifestly we can here give only a general idea of what seems the pertinent facts necessary to reveal the actual situation.

The trial court entered decree for plaintiffs and defendants appeal.

Decedent lived alone in Manson, Iowa, after his wife died in 1934. He was German born--came to this country when six. He had some, but not much, country school education. When his mother died (1938) he became executor of her will. His sister, Emma Eckhoff, says she did his bookkeeping and clerical work at that time and while his brother Bill was tenant on his farm. She testifies that relationship terminated when he decided to turn the job over to his sister-in-law, defendant, Anna Freimuth: 'That was in about 1943, * * * I didn't do any more of his work, in looking after his business after that.'

The Record is replete with evidence of the intimacy between the brothers Fred and Bill. The difference in their ages naturally grew less important as they grew older. Fred was apparently prosperous but not very active in a business way, not weighted too heavily with business cares at least, fond of fishing and other sports, and without dependents.

His brother Bill, fourteen years younger, somewhat better educated, aggressive but unfortunate in business ventures (apparently), seemed to furnish a welcome companion for fishing and other trips. Bill's various business attempts need not be recounted in detail: farming, stock feeding, road graveling, selling automobiles and farm machinery.

In 1930 he took voluntary bankruptcy. His then attorney, as witness here for defendants, says it was a 'no-asset case.' Fred was listed as a creditor for $3,500. The former attorney testifies Bill 'was all washed up financially.' Thereafter he rented farms in northern Iowa and southern Minnesota and moved to Wells, Minnesota, about March 1, 1932, remaining in that state till 1940, engaged in farming, cattle and hog feeding, and other activities.

During this period of the depression he claims he made money, put it away secretly, and became the actual, though not the record, owner of most of the property involved here which stood in Fred's name. He does not explain Fred's financial decline which this would necessarily imply.

The trial court's finding at this point seems an accurate and able appraisal: 'Throughout Bill's story of his business dealings he complains of ill luck, disaster, frauds committed upon him, schemes by designing bankers, lawyers and others trying to fleece him. There are many inconsistencies and much unnecessary detail by way of trimming, which drew him into obvious untruths. His own story of his business history is filled with stories of fraudulent transfers which he apparently viewed as ordinary business procedure.'

After he returned to Iowa he occupied the land that still stood in Fred's name but made no move to take over the record title. There was a bank claim in Minnesota which he claims was fraudulent and he did not care to meet, preferring to rely later on the limitations statute.

The story of the execution of the conveyances involved here may be briefly told. Late in August, 1946, Fred and defendants Bill and Anna (with a young daughter) started on a fishing trip to Shell Lake, Wisconsin. The men had a cousin there and another at nearby Spooner. Bill and his family traveled in their car; Fred, alone in his own. On the way the cars became separated. Defendants, unable to find Fred, drove on to Shell Lake, vainly hoping he had gone on ahead. Telephone and radio search failed.

On August 28, after they had finally returned to Iowa, they received word from the sheriff at Baraboo, Wisconsin, that Fred was ill in a hospital there, many miles distant from and not on the way to Shell Lake or Spooner.

Defendants Bill and Anna, with daughter, started at once for Baraboo, arriving the 29th. It seems Fred had been found in that area, asleep or unconscious in his car, clothed only in his shorts with his other clothing piled on the seat. He was taken to the hospital in Baraboo August 27, 1946.

The doctor there testifies: 'When I first examined him he was not rational or able to tell how and where (sic) he got there. During his stay in the hospital, there were times when he had to be restrained * * * and * * * did not talk coherently.'

He talked vaguely at times about having been attacked and beaten but it later developed his bruised appearance was due to disease.

He was delirious much of the time. He got out of bed the first night and the deputy sheriff was called and had to help the nurses get him back in. After that restrains were applied. The doctor testifies he was refusing to drink and talking to himself and that was 'pretty much his condition * * * the day before he left the hospital.' That would be August 29, 1946.

The doctor objected to his removal to Iowa on the 30th: 'He was not out of his mind. He was sick.' But the doctor also says: 'At the time I examined him it was obvious that he had a mental disorder of some kind.' The hospital finally required the patient to sign a waiver before releasing him.

The deed signed by Fred August 30 before starting for Iowa, conveyed all his farm and town real estate; the bill of sale of the same date covered all the personal property on the approximately 160 acre farm. The attorney who drew the instruments was the district attorney but he died too soon to be available as a witness. There is no evidence he was acting as attorney for Fred or was giving him any independent legal advice.

The signing was done at the jail in the undersheriff's quarters. No one else was present except the attorney, sheriff, defendants and daughter. The papers were acknowledged before the attorney as notary public and witnessed by the attorney and sheriff. They were already prepared--the sheriff thinks in the attorney's office. The sheriff testifies: 'Bill Freimuth was in contact with the district attorney during the day that he was here and the next day'; also: 'I talked with (him) before he came and told him the circumstances and the condition his brother was in so he knew the condition before he ever came here.' The fair conclusion is the papers were previously prepared somewhere at Bill Freimuth's request and direction though he denies it. There is no testimony the attorney came to the hospital. Unfortunately we do not have the benefit of the attorney's version. At least one of the instruments was on an Iowa form, not available in Baraboo but, as the trial court shrewdly observes, 'available at the Somers, Iowa, bank where Bill had stopped before he left for Baraboo.' The real estate was described accurately by section, township and range numbers. The attorney's secretary thinks the description was obtained by long distance but disclaims memory for details 'after seven years.' She does say 'We didn't have any Iowa forms at all.'

After the execution of the instruments the Freimuths started at once for Iowa. The papers were not filed for record until after Fred's death, over twenty-one months later. During that time he lived with Bill and Anna on the farm that had been conveyed, except for less than a week spent at the hospital at Ft. Dodge. The Baraboo doctor had consented to Fred's removal from the hospital there 'on condition and with the assurance from the relatives that he would immediately be transferred to a hospital in his home community.' That assurance was not very literally observed.

Dr. Dawson of Ft. Dodge was called to see Fred August 31, 1946. He testifies: 'I think there definitely was some mental defection at that time. * * * It is hard to determine whether he was rational.' The doctor made arrangements that night for him to be transferred immediately to the hospital, but his entrance was delayed until September 6, a week later.

While he was at the hospital, the doctor says, 'he was more or less in a...