Mallow v. Walker

Decision Date21 December 1901
Citation115 Iowa 238,88 N.W. 452
PartiesMALLOW v. WALKER. STEVENSON v. WALKER. MALLOW v. STEVENSON. WALKER v. MALLOW.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from district court, Buchanan county; Franklin C. Platt, Judge.

These four actions, affecting the distribution of the property of Gamaliel Walker, now deceased, were, by agreement, consolidated, and tried as one equitable action, and a decree was rendered adjusting the various claims of the parties. The real parties in interest are John and Laura Mallow on the one side and Simon Walker on the other. The decree was in some respects favorable to one side in the general controversy, and in other respects favorable to the other, and both sides appeal. Walker will be treated as appellant. Reversed.Holman & French and E. E. Hasner, for appellant.

Cook & Leach, for appellee.

McCLAIN, J.

Gamaliel Walker died December 21, 1898, having attained the age of nearly 82 years, and leaving, as his estate, one 40-acre tract of land and a small amount of personal property. For some years prior to August, 1898, he had lived with his daughter, Laura Mallow, and her husband, John, both of them parties in these proceedings. In that month, however, he left the home of the Mallows, and went to live with his son, Simon (the appellant), and wife. While living with the Mallows, Gamaliel Walker had made a will devising the 40-acre tract of land above referred to, and which was then in possession of the Mallows, to his daughter, Laura, but immediately after leaving the home of the Mallows he withdrew this will from the office of the clerk of the district court, where it had been deposited, and destroyed it, and thereafter executed to Simon a deed to the 40 acres, in consideration of support for the balance of his life and $200 to be paid to a grandchild. Before the death of Gamaliel Walker, action of replevin was commenced in his name against John Mallow to recover possession of a promissory note executed by said John Mallow to Gamaliel Walker for $400 of borrowed money, which note it was alleged was wrongfully in the possession of said Mallow. Afterwards Simon Walker, claiming under an assignment of the note from his father, was substituted as plaintiff in this action. Another action was brought by John Mallow against Gamaliel Walker to recover a balance of about $1,200 on an account for boarding the latter and two grandchildren, and for small sums of money advanced. In this action a counterclaim was interposed by the defendant therein for money advanced at various times to the plaintiff to an amount, in the aggregate, of about $2,800. In this action J. C. Stevenson, as administrator of the estate of Gamaliel Walker, deceased, was, after the death of the latter, substituted as defendant. Laura Mallow, after the death of Gamaliel Walker, instituted a suit to have the deed to the 40 acres from her father to Simon set aside as executed without sufficient mental capacity and under undue influence, basing her right of action on her claimed interest in the property to the extent of one-third as heir. Finally, Laura Mallow, then administratrix of her father's estate, brought suit as such administratrix to have the said deed set aside on the same ground, and on the further ground that it was fraudulent and void as against creditors, and asked that the property be subjected to the payment of claims against the estate, including the claim of John Mallow, for the balance of account above referred to. In this last suit John C. Stevenson, who was appointed administrator instead of Laura Mallow, was substituted as plaintiff.

From the foregoing very brief statement it is apparent that all the controversies involved in these four suits are really between John and Laura Mallow on the one side and Simon Walker on the other, and they will be treated as the adverse parties. It is also apparent that these controversies grow out of injured feelings, as well as injury to property rights, and that their solution depends to a considerable extent upon evidence of transactions with a person deceased, and upon the competency of the deceased, an old and infirm man, to make disposition of his property as between his heirs; and involve the further question whether such disposition was of his own free will or under undue influence. The conclusions we have reached are by no means entirely satisfactory to us, and yet they are adopted, in the belief that they approximate, as nearly as practicable under the law and the evidence, to the administration of abstract justice. We shall set them out as briefly as possible.

1. There is much evidence relating to the mental capacity of Gamaliel Walker at the time he destroyed his will and executed the deed to Simon. Without discussing it, we have to say that we agree with the conclusion of the lower court in the holding that want of mental capacity was not shown. Gamaliel Walker seems to have had sufficient mind to determine for himself what he wanted to do, and to carry out his purposes with reference to the disposition of what property remained to him, and it is not for us to pass upon the reasonableness of such disposition. His antipathy to the Mallows, which seems to have been suddenly formed, may have been justified; and, even if unjustified, would not show mental incapacity. The owner of property, having the right to make such disposition of it as he sees fit, is not accountable to any one with reference to the motives which lead him to act.

2. As to the claim that the deed was procured by Simon from his father by undue influence, it is sufficient to say that no evidence of any such undue influence appears. The burden of proof is on the party seeking to establish the fact of undue influence for the purpose of having a conveyance or a will set aside, and the evidence must show that the influence was such as to overcome the will of the grantor, and to destroy, to some extent at least, his free agency. McIntire v. McCaun, 28 Iowa, 480;Orr v. Pennington, 93 Va. 268, 24 S. E. 928. And it must appear that the undue influence was exercised at the time the act referred to was done. Herster v. Herster, 122 Pa. 239, 16 Atl. 342, 9 Am. St. Rep. 95. “The fact that the act was done by reason of the influence resulting from affection or attachment, or a mere desire to gratify the wishes of another, if the free agency of the party is not impaired, does not affect the validity of the act.” Orr v. Pennington supra. The mere fact that the distribution made by a parent of his property among his children appears unreasonable or unjust will not alone establish undue influence, and prior declarations of an intention contrary to the subsequent disposition cannot be shown to establish undue influence in respect to the disposition finally made. Muir v. Miller, 72 Iowa, 585, 34 N. W. 429. And see Pooler v. Cristman, 145 Ill. 405, 34 N. E. 57. The mere fact that the provision complained of is one made as between a parent and child will not give rise to the presumption that it was the result of undue influence. While a conveyance from a child to a parent may sometimes be deemed presumptively invalid by reason of the influence which the parent is supposed to have over the child while occupying toward him a confidential relation, this does not apply when the conveyance is from the parent to the child. Bauer v. Bauer, 82 Md. 241, 33 Atl. 643;McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590;Chambers v. Brady, 100 Iowa, 622, 69 N. W. 1015. Even if it appears that a deed or will is executed at the suggestion or...

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