Moore v. McKinley

• Decision Date: 08 March 1955
• Docket Number: No. 48580,48580
• Citation: 69 N.W.2d 73,246 Iowa 734
• Parties: Nellie McKinley MOORE, Appellee, was replaced by H. W. Marks, Administrator of her estate, and Genevieve M. Vince, her sole heir at law, as Substituted Appellees, v. James L. McKINLEY and Maxine McKinley, his wife; Hubert G. McKinley and June McKinley, his wife; Robert A. McKinley and Jean McKinley, his wife; Lydia E. McKinley, et al., Appellants.
• Court: Iowa Supreme Court

Page 73

69 N.W.2d 73

246 Iowa 734

Nellie McKinley MOORE, Appellee, was replaced by H. W. Marks, Administrator of her estate, and Genevieve M. Vince, her sole heir at law, as Substituted Appellees, v. James L. McKINLEY and Maxine McKinley, his wife; Hubert G. McKinley and June McKinley, his wife; Robert A. McKinley and Jean McKinley, his wife; Lydia E. McKinley, et al., Appellants.

No. 48580.

Supreme Court of Iowa.

March 8, 1955.

E. E. Poston, Corydon, H. E. Long, Leon, Lundy, Butler & Lundy, Donald C. Wilson, Eldora, for appellants.

Garrett & Bown, Corydon, for appellee.

BLISS, Justice.

After the submission of this appeal, plaintiff-appellee died intestate on November 14, 1954, leaving as her only heir at law, Genevieve M. Vince. H. W. Marks was appointed administrator of the decedent's estate, on January 6, 1955. With the consent of all parties, the said administrator and Genevieve M. Vince were substituted as appellees herein by order of this Court on January 13, 1955.

The evidence in this action was presented on September 29 and October 2, 1952, to the Honorable George A. Johnston, Judge of the District Court, and, after full submission on written briefs and arguments the cause was taken under advisement by the Court, but before findings and final decree could be prepared, Judge Johnston died on December 6, 1952. Thereafter, on the order of the Chief Justice of this Court, said cause, on the full record presented to Judge Johnston, was submitted for determination and decree to the Honorable Heinrich C. Taylor, Judge of the Second Judicial District of Iowa.

The pleadings, with attached exhibits, cover seventy pages of the printed record. A summary of their allegations and prayers is unnecessary. The controversy principally involves the construction of certain wills, and a quitclaim deed. James W. Porter, a resident of Wayne County, Iowa, at the age of seventy-five years, executed his last will on May 6, 1910. He died May 23, 1921, and his last will was probated June 6, 1921.

The provisions of the will, principally involved in this litigation, are the following, in substance: 'Par. 13. I give, devise, and bequeath to my daughter, Clara V. McKinley, for and during her natural life, meaning hereby to create, and convey to her an estate during her natural life, the following described real property, viz:' E 1/2 SW 1/4 and SW 1/4 SW 1/4, and all of SE 1/4 lying west of the right of way of the C. B. & Q. Railroad, all in section 3, township 70, north, Range 23, except about three acres previously conveyed for cemetery purposes, and containing altogether about 142 acres; and the S 1/2 NW 1/4 and NE 1/4 of sec. 33, and the W 1/2 NE 1/4 of section 26, all in the same township and range above noted, in Wayne County, Iowa.

'Par. 14. At the death of said Clara V. McKinley, I bequeath in fee, the said land in Section three (3), described in paragraph 13 of this will, to her son, James W. McKinley; and the S 1/2 NW 1/4 and the NE 1/4 SE 1/4 of section 33, and the W 1/2 NE 1/4 of section 26 to her son, Leo G. McKinley.'

'Par. 15. If the said James W. McKinley, shall have died before the said Clara V. McKinley, leaving children surviving him, the land bequeathed to him shall be divided equally between them, share and share alike; but if the said James W. McKinley shall have died before the said Clara V. McKinley, leaving no children surviving him, the said land shall go to his brother, Leo G. McKinley, but if the said Leo G. McKinley shall have died before the said James W. McKinley without leaving issue, the said land shall be divided equally between the other children of the said Clara V. McKinley.'

Paragraph 17 of the will is identical with paragraph 16 if the names, James W. McKinley and Leo G. McKinley be transposed wherever they appear in paragraph 16. The testator executed two codicils to his will and each confirms it, except as to changes therein, not pertinent in this suit. The only property involved in this litigation is the land in section 3--the 142 acres legally described in paragraph 13 of the will, set out above. At the time of the testator's death, his grandson, James W. McKinley and family were living in Texas. Clara V. McKinley did not personally take possession of the land devised to her in paragraph 13 of the will, but she furnished money to her son James W. to pay his obligations in Texas, and to transport him and his family from Texas to Wayne County, and place them on the farm and bought him an automobile and equipment and livestock to enable him to operate the farm. James went on the farm in June, 1921, and operated it for nine years. The rental arrangement between him and his mother was that he was to pay her annual rent of $1.50 an acre, and also pay the taxes. He became involved financially and she signed his promissory notes to the amount of $4,000. When he asked more financial aid from her she told him there had to be an end to it, and that she could not continue paying 8% interest, and he should negotiate a mortgage on the 142 acres at a lower rate of interest. He did so. When she was called to the bank to sign the mortgage papers, she found the loan was for $5,000 instead of $4,000. But she executed the papers, and when she later asked him why he had added the $1,000, he told her he had to have the extra money.

This note for $5,000 and the mortgage on the 142 acres were executed on September 1, 1925 by Clara V. McKinley and James W. McKinley and his wife, Lydia E. McKinley. The payee of the note and the mortgagee was the Bankers Life Company. James W. McKinley received and used the money borrowed. James W. McKinley was unable to pay the mortgage indebtedness when it was due. Clara V. McKinley was notified that the mortgage would be foreclosed if not paid at maturity. On August 1, 1930, James W. McKinley and wife, Lydia, for a recited consideration of 'One Dollar and other valuable consideration', executed to Clara V. McKinley, a quitclaim deed to the 142 acres in controversy, a life estate in which had been devised to the grantee in the James W. Porter will. The deed was filed for record on August 2, 1930.

On September 5, 1930, Clara V. McKinley purchased the $5,000 note and mortgage and they were assigned to her, without recourse, by the Bankers Life Company. The assignment was filed for record on May 25, 1932. In a letter of August 29, 1947 written by Clara V. McKinley to her grandson James L. McKinley (one of the defendants) in Los Angeles, Calif., she referred to this mortgage. In a reply letter of September 22, 1947 to Grandmother McKinley, James L. McKinley stated: 'It was with the greatest surprise and amazement that I noted your comments with reference to a mortgage. I assume this to be the same one that Will Moore spoke to me about some time ago, I believe in 1938 or 1939. At the time * * * I advised him that it was my feeling that the above referred to mortgage had no legal standing and that it had been entered into illegally by both you and father. I quite naturally had this matter checked most carefully both by my own firm of attorneys here in Los Angeles and by a leading attorney in Des Moines. Both without the least question advised me that any mortgage entered by either you or father against any part of the land had absolutely no legal standing or recognition. Therefore, I dismissed the matter of any mortgage against the land completely from my mind and will continue to do so. * * *'

'Granma McKinley', as she signed the letter, on October 2, 1947, wrote to 'Dear james' stating: 'Your letter received a few days ago, and I really was surprised at your attitude, altho, perhaps I shouldn't have been after the reception I received the last time I saw you. * * * I had not heard anything from either of you for so long. I knew nothing of what you were doing. * * * I have never had any of your addresses so how could I write?

'And so you are consulting 'fine Lawyers' to learn how you can beat your Old Grandmother out of what is justly hers, Eh? Well James do you think I am a fool or a skinflint? I was on your father's notes at the bank for Four Thousand Dollars, and was keeping the interest paid all the time, and the tax on the farm part of the time. * * *' Referring to her purchase of the Bankers Life mortgage, she stated in this letter: 'I borrowed the money to buy it and pay the accumulated interest. I borrowed $3000 from the Humeston bank, and $2000 from the Corydon bank, and neither one asked me for any collateral in any form. Could you or any one of my father's family or yours do that? I paid that money at the banks in about three years, by applying all my income from all sources. * * * I have explained this in a brief way so you will know I consulted lawyers as well as you, but from a very different purpose. Yours to beat me, & mine to save you. * * *' (The italics are by the writer of the letter.)

The quitclaim deed was received in evidence subject to defendants' objection, among others, that 'no consideration was paid therefor.' The deed recites 'valuable consideration' other than the 'One Dollar'. In addition to the mortgage obligation taken up by Clara V. McKinley, checks of hers payable to James W. McKinley, indorsed by him and stamped paid, unpaid promissory notes of his payable to her, other evidences of indebtedness of James W. McKinley owing to her, including money furnished for the schooling of defendant, James L. McKinley, at Drake University, with handwriting and signatures all identified and undenied, were found in the safety deposit bank box of Clara V. McKinley, by her guardians on their appointment. The quitclaim deed was executed at about the maturity of the mortgage debt, and when foreclosure was threatened. The indebtedness of James W. McKinley to his mother, not including the mortgage debt was in excess of $11,000. A substantial part of it was shown by evidence introduced by defendants.

The matter of lack of consideration for the...