McAnulty v. Peisen

• Decision Date: 24 June 1929
• Docket Number: 39626
• Citation: 226 N.W. 144,208 Iowa 625
• Parties: E. H. MCANULTY, Administrator, et al., Appellants, v. DEAN W. PEISEN, Executor, et al., Appellees
• Court: Iowa Supreme Court

226 N.W. 144

208 Iowa 625

E. H. MCANULTY, Administrator, et al., Appellants, v. DEAN W. PEISEN, Executor, et al., Appellees

No. 39626

Supreme Court of Iowa, Des Moines

June 24, 1929

Appeal from Hardin District Court.--O. J. HENDERSON, Judge.

Plaintiff entitled and filed his petition as one at law. Defendants moved to transfer to equity. Motion sustained. Plaintiffs appeal.

Affirmed.

Aymer D. Davis, Thomas & Thomas, and Willard F. Russell, for appellants.

Dean W Peisen, for Kathryn Hanson and pro se, appellees.

Howard G. Fuller and E. H. Lundy, for Alta Wood, Robert Lyon, and Earl Lyon, appellees.

Williams & Steinberg, for James Lyon and Gary Lyon, appellees.

MORLING J. ALBERT, C. J., and EVANS, FAVILLE, DE GRAFF, KINDIG, and WAGNER, JJ., concur. STEVENS, J., dissents.

OPINION

MORLING, J.

The ultimate question is whether the alleged cause of action is one triable on the law or the equity side of the court. The motions are not for the transfer of equitable issues, but are for the transfer of the cause to equity, on the ground that the plaintiffs are in error in the kind of proceedings adopted, an error which defendants are entitled to have corrected by motion before answer, as provided in Sections 10943 to 10946, inclusive, Code of 1927.

Sections 10940 and 10941, Code of 1927, read as follows:

"10940. All forms of action are abolished, but proceedings in civil actions may be of two kinds, ordinary or equitable."

"10941. The plaintiff may prosecute his action by equitable proceedings in all cases where courts of equity, before the adoption of this Code, had jurisdiction, and must so proceed in all cases where such jurisdiction was exclusive."

These sections had their origin in the "Code of Civil Practice" Act, incorporated in the Revision of 1860, Sections 2608, 2610, 2611. The case must be determined under the last clause of Section 2611, Revision of 1860 (Section 10941, Code of 1927): "and must so proceed in all cases where such jurisdiction was exclusive,"--that is, exclusive prior to the adoption of the Code of Civil Practice Act of 1860. The exclusive jurisdiction of equity embraces two classes of cases: First, those in which the plaintiff's case is founded upon an equitable estate, title, or interest; and second, those in which the remedy sought is one that only a court of equity can administer. 1 Pomeroy's Equity Jurisprudence (4th Ed.), Section 137 et seq. The motions must necessarily be determined upon the plaintiffs' own allegations.

Plaintiffs aver that they are administrator and heirs at law of Viola Lyon, who died October 25, 1926, leaving then surviving her husband, H. A. Lyon; that Viola Lyon and H. A. Lyon were married in 1901, shortly after which, H. A. Lyon and Viola Lyon "entered into a common enterprise or joint arrangement or undertaking, wherein, by means of merchandising, money lending, the discounting of commercial paper, and in other ways, they accumulated a considerable amount of property, the major portion of which is set out in Exhibit A." (What the "joint arrangement" then was is not further alleged.) It is alleged:

"That Viola Lyon made a good-faith claim to an equal undivided share and interest in each and all of said properties, in whatever from they were, or in whatever properties they were invested, and said claim was acknowledged, allowed, consented and agreed to by Howard A. Lyon; that, prior to the month of April, A. D. 1925, Viola Lyon and H. A. Lyon entered into an oral agreement in respect to such properties, whereby, in consideration of their joint efforts, and in consideration of said good-faith claim made and allowed by said H. A. Lyon, in consideration of the title of said property remaining as it was at said time, and in consideration of neither party demanding a separation or division of said properties, they were to remain intact during their joint lifetime, and upon the death of one or the other, the properties were to remain intact, and to be used by the survivor as long as the survivor lived, and at his or her death, were to be divided, and go the one half thereof to the heirs at law of Viola Lyon, and the other one half to the heirs at law of H. A. Lyon. * * * That said H. A. Lyon, after the death of Viola Lyon, claimed that the agreement as set out herein was made between him and Viola Lyon, and stated that it was binding upon him, and that he fully intended to and would carry the same out."

It is alleged that H. A. Lyon died March 22, 1927; that, until after the death of Viola Lyon, H. A. Lyon claimed that the agreement as set out in the petition was made and was binding upon him, and he would carry it out; that he entered into marriage contract with defendant Kathryn Lyon, and was induced by her to make a will, "giving one half of the properties in question to his claimed wife, whoever she might be,"--not, however, naming her. The other half of the properties he attempted to give by his alleged will to defendants Alta Wood, Robert Lyon, and Earl Lyon. It is alleged that defendant Dean W. Peisen is the executor, and defendants James Lyon and Gary Lyon are the only heirs of H. A. Lyon.

"That, by reason of said contract and pursuant thereto, the said Viola Lyon permitted the properties in question to remain as they were, and with the legal title in said H. A. Lyon, and procured no division or separation thereof, and relied upon said contract and said agreement, believing that said H. A. Lyon would carry the same out, as he had promised and agreed."

It is alleged that, upon the death of Viola Lyon, H. A. Lyon took all of said property and enjoyed its use until his death.

"That, upon the death of said H. A. Lyon, the title to one half of said property at once became vested in these plaintiffs, pursuant to the terms of said contract and agreement made in their behalf. That said H. A. Lyon, during his lifetime, and after the death of said Viola Lyon, converted certain portions of said properties into moneys and credits and other forms of properties, and these plaintiffs are unable to give a particular description of all the properties that were covered by said contract and agreement and which came into the hands of said H. A. Lyon and to which the plaintiffs are now entitled, but plaintiffs aver that the said H. A. Lyon died in the possession of the properties described in Exhibit A."

It is further alleged that defendant executor "entered into possession of all of the same, claiming the possession and ownership thereof as the alleged executor of the estate of H. A. Lyon, deceased. That, as such executor, the defendant Dean W. Peisen has converted a large amount of said properties into moneys and credits, and these plaintiffs are unable at this time to state what portion of said properties remains in the form in which it was at the time of the death of H. A. Lyon, and what portion has been converted by the said Dean W. Peisen."

"That the defendants Alta Wood, Robert Lyon, and Earl Lyon claim to have some interest in said properties, as the claimed legatees under an alleged document claimed to be the last will and testament of H. A. Lyon, deceased. That Kathryn McMichael, or Kathryn Lyon, or Kathryn Hanson, who seems to be one and the same person, claims an interest in said properties under said alleged document, as the claimed surviving widow of H. A. Lyon, deceased. That plaintiffs aver that any right, title, or interest or claim that the defendants or any of them might make in or to said properties is junior and inferior to the claim of these plaintiffs to the undivided one half thereof, and plaintiffs aver that said properties and the proceeds of the conversion thereof are now in the possession and control of the defendant Dean W. Peisen.

"That said Dean W. Peisen makes the claim that he is the executor of the estate of H. A. Lyon, deceased, and as such executor claims title and ownership of all the properties in question, adverse to the rights, claims, and demands of these plaintiffs. That he makes claim to the title and ownership of said properties through a mistake as to his rights therein, all as alleged and stated in this petition.

"That the alleged document under which he claims the possession and ownership of the same is of no validity as to the one half of the properties in question, which belongs to these plaintiffs."

Plaintiffs further allege that defendant Dean W. Peisen, on examination in court, denied the right of any of the plaintiffs to any interest in the properties; "that plaintiffs have the ownership and right to the immediate possession of the undivided one half of the properties in question, and they have had such ownership and right to possession of said one half of said properties since the death of H. A. Lyon, on the 22d day of March, A. D. 1927, and all of said rights have been denied to them by the defendants. That the one-half value of said properties at the time of the death of H. A. Lyon was the aggregate sum of $ 54,708.51."

The plaintiffs do not state whether any of the property acquired by decedents was real property, nor do they further describe the property alleged to have been accumulated, or the property into which H. A. Lyon is alleged to have converted it. The exhibit to the petition is stated in the abstract to have set "forth an itemized statement of the properties belonging to the estate of H. A. Lyon, deceased, at the time of his death, a recapitulation of the exhibit being as follows: 'Recapitulation. Money on deposit $ 5,721.96, Book Accounts $ 1,052.96, Bank Stock $ 2,200.00, Corporation Stock $ 10.00, Notes $ 100,432.10. Total $ 109,417.02.'" The abstract further proceeds:

"All of which property is personal property, and all the property involved is personal property. No right,...