Nowlen v. Nowlen

• Decision Date: 02 February 1904
• Citation: 98 N.W. 383,122 Iowa 541
• Parties: LEMUEL H. NOWLEN et al., Appellants, v. CHARLES W. NOWLEN et al., Appellees
• Court: Iowa Supreme Court

98 N.W. 383

122 Iowa 541

LEMUEL H. NOWLEN et al., Appellants, v. CHARLES W. NOWLEN et al., Appellees

Supreme Court of Iowa, Des Moines

February 2, 1904

Appeal from Polk District Court.--HON. C. P. HOLMES, Judge.

AFFIRMED.

Dale & Harvison for appellants.

Thos F. Stevenson for appellees.

OPINION

The opinion states the case.--Affirmed.

WEAVER J.

Arthur Nowlen died September 7, 1897, at the age of seventy-nine years. He was divorced from his first wife in the year 1882 and within a few months thereafter married his second wife, Elizabeth, who is one of the defendants. The plaintiffs and the defendant Charles W. Nowlen are the children of the first marriage, and the defendant Arthur E. Nowlen is the only child of the second marriage. Prior to the separation from his first wife, which occurred in the year 1879, he resided in Illinois, where he was engaged in the practice of medicine. About that time he came to Iowa alone, and none of his children of the first marriage thereafter lived near him. He occasionally visited them, and at long intervals some of them made him a brief visit, but the relations between the father and these children, while always apparently friendly, do not appear to have been of a very cordial or affectionate character. What property he brought from Illinois is not clearly revealed by the record. It does appear, however, that in the course of years he became possessed of residence property in the city of Des Moines, and one hundred forty acres of land in Story county. On February 2, 1893, he united with his wife in conveying the Story county property to one Schumaker, to be held in trust for the benefit of his son Arthur E. Nowlen, then a minor about ten years of age. In 1896 the said Arthur Nowlen, Sr., made a deed conveying to his wife the residence property in Des Moines, and soon after made to her another deed purporting to convey the Story county property. About the same time it would seem to have been discovered by him that the conveyance in trust to Schumaker was an obstacle which would prevent his making a valid deed to his wife, and an attempt was made to eliminate the trust by having Schumaker quitclaim the property back to Nowlen. In this condition the title stood at the time of Nowlen's death. Plaintiffs seek by this action to have said conveyances by their father declared void, and set aside, on the ground that they were obtained by fraud and undue influence exercised over the grantor by his wife, Elizabeth, and on the further ground that at the date of said instruments said Arthur Nowlen was of such weak and unsound mind as to be incapable of intelligently understanding the legal nature or effect of his act. Defendants deny the plaintiff's allegations of fraud and undue influence and want of mental capacity upon part of Arthur Nowlen. Trial to the court upon the issues thus presented resulted in a decree for the defendants, and plaintiffs appeal.

I. There is little or no room for contention upon the law governing this case, and the question to be decided is almost purely one of fact. Were the conveyances by which Arthur Nowlen during his lifetime divested himself of the property in controversy obtained from him by the fraud or undue influence of his wife? At the date of said conveyances was Arthur Nowlen so infirm or unsound of mind that the court should declare said instruments void? After a careful reading of the entire record in the light of the very exhaustive and pains-taking brief on part of the appellants we are wholly unable to find any substantial support of the charge of fraud and undue influence. The testimony is entirely too voluminous for us to attempt even its recapitulation. We can say, however, in a general way, that we have searched it in vain to find anything to indicate any request or demand or persuasion made use of by the wife to induce her husband to thus provide for their son or herself, or anything upon which to found a belief that the conveyances were not in every sense of the word his free and voluntary act. It it true that the wife appears to have been considerably younger than her husband, and as he advanced in years and the feebleness usually attendant upon old age he evidently came to rely in an increasing degree upon the care and assistance which she rendered him; but services which are demanded or called forth by an ordinary sense of duty, to say nothing of conjugal affection, in a faithful wife, should not be attributed to a fraudulent or unworthy motive in the absence of evidence clearly justifying such conclusion. Neither was the act by which he transferred this property to his wife and son of such unnatural or extraordinary character as to excite a just suspicion that it must have been procured by undue influence. For eighteen years prior to his death this man had been separated from his first wife and from the children by that marriage. It is not necessary for us to consider where the blame for that separation lies. We are chiefly interested in the fact that his family was disrupted, and we have no doubt it is to the credit of the plaintiffs that they appear to have sympathized and remained with their mother. While that disruption did not have the effect to wholly estrange the father from his children, yet it is unmistakably apparent that as the years went by the strength of the bond between them gradually lessened, while his sense of obligation to the wife and child of his old age gradually increased. Prior to the execution of the trust deed in favor of his youngest son, he had at times suggested to his children, or some of them, a purpose on his part to provide for them in some measure by his will; but during the last six years of his life the burden of his talk indicates his purpose to make his wife and her boy the principal beneficiaries of his estate. The trust deed, as we have already stated, was made February 2, 1893--more than four years prior to his death. On December 20, 1894--nearly three years before his death--he made his will (admitted to probate pending this litigation), by which, after giving his wife one-third of his estate, and providing for a legacy of $ 500 to his daughter Mrs. Record, and smaller legacies to the rest of the children of his first marriage, he gave all the remainder of his property to his son Arthur Nowlen. At the time of making the will the testator had moneys and credits to the amount of several thousand dollars. Following this will were the deeds made in January and February, 1896-- something more than a year and a half before his death. All these things tend strongly to show a tenacity and continuity of purpose to care for his wife and infant son by giving them in some form, or by some efficient means, the bulk of the property he had accumulated. He was under no legal obligation to provide for his older children. That the wife who was then living with him, giving him companionship and care in his old age, and the son, a minor, yet unprepared for self-support, should have appealed to his bounty in preference to the children who were of mature years, and presumably...