Orris v. Whipple
| Citation | 280 N.W. 617,224 Iowa 1157 |
| Decision Date | 21 June 1938 |
| Docket Number | 44183. |
| Parties | ORRIS et al. v. WHIPPLE. |
| Court | Iowa Supreme Court |
Appeal from District Court, Webster County; O. J. Henderson, Judge.
An action tried in law by the court involving the question as to the delivery of a warranty deed claimed by plaintiffs-appellees to have effected a gift of certain real estate. There was a finding and judgment that the deed in question had been effectively delivered and that plaintiffs were entitled to its possession. The facts appear in the opinion. The defendant appeals.
Reversed and remanded.
Breen & Breen, of Fort Dodge, for appellant.
Maher & Mullen, of Fort Dodge, for appellees.
This case was commenced and tried as a replevin action in which a jury was waived and the case tried to the court resulting in a finding that the plaintiffs were entitled to the possession of a certain deed to real estate in the town of Lehigh Webster County, Iowa. Serious objection was made to the form of the action, but in our view of the case it will not be necessary for us to consider or pass upon this question. We might say however, in passing, that the appellant claims error on the part of the trial court in not sustaining a motion to dismiss on the ground that replevin was not the proper remedy, appellant contending that where the thing sought is an adjudication of title to real estate and not the actual possession of a conveyance thereof that replevin cannot be maintained; and appellant cites quite respectable and extensive authority for his position.
The real question involved in the trial below and on this appeal is whether or not a certain deed executed by one Clara Aken deceased, purporting to convey to plaintiffs-appellees certain real estate was delivered and did in fact constitute a valid conveyance and vest title in the appellees.
The story detailing the pertinent and material facts and circumstances is briefly as follows: Clara Aken lived substantially all her lifetime in Lehigh, a small town in Webster County, Iowa. She was never married and at her death in March, 1936, was approximately seventy-five years of age. Earlier in her life she went into the millinery business in Lehigh operating such business in a store room of a building that she owned, and she occupied the second story of the building as a residence. She had no near relatives. Her nearest kinsfolk being nieces and nephews. The record discloses that she left little or no property other than the building occupied by her which is of the approximate value of $600 or $700. In 1932 she executed a will which was prepared for her by Mr. Russell E. Whipple, a long time resident of the town, and this will was admitted to probate and the estate is in process of administration with the said Whipple defendant and appellant in this action, as executor of the estate. The will provided and directed that the executor sell the real estate located in Lehigh, Iowa. The building we have above mentioned and the real estate upon which it is situated is the only real estate owned by Clara Aken at any time, as far as is shown by this record, and it is the title to this real estate which is involved in this action. The will contains further provisions directing the payment of debts, expenses of last sickness and burial, and special bequests of $200 each to three nieces, four nephews, a bequest of $300 to another niece, and special bequests of $200 each to one C. E. Bailey, to a Spiritualistic Association and to Flora Pettibone, whom she describes as her " Dear Friend" ; and the last bequest mentioned in the will is $200 to Elizabeth Orris. Elizabeth Orris is one of the plaintiffs and appellees in this action. It will be noted that Fred Orris, the twin brother of Elizabeth, and one of the appellees herein, is not mentioned in the said will. There is testimony of the mother of the Orris twins to the effect that Clara Aken began talking about leaving the building to the twins in 1934, but most of the talk, according to her testimony, was in 1935. And she further testifies that Clara made the statement several times during 1935 that she had the papers all made out so that the children (twins) would get the building. A clerk in a store frequently visited by Miss Aken also testified that at different times he heard Miss Aken state when she was in the store that she had it fixed so Junior and his sister would get the building. Another witness, a Mrs. Elsberry, who ran a restaurant in the little town where Miss Aken took her meals during the year prior to her death, testified that she heard Miss Aken say, " If anything happens to me, I want Junior to have the building." This witness also testified that she never heard any other name mentioned except Junior and that all she talked about was leaving this property to Junior. Junior seems to have been a nickname for the appellee Fred Orris. These conversations were after the execution of the deed here involved. One Peter Garatoni, who was in charge of a branch bank in Lehigh from and after September, 1934, testified that in March, 1935, Miss Aken was a customer of the bank and had a safety deposit box therein; that she talked to Garatoni about disposing of her property and told him that she wanted Junior Orris to have her building when she died and that she wanted a deed made out conveying the property in question to him; that she would come back to the bank some day when she had more time and make out the deed. About April 1, 1935, she did go back to the bank and had Garatoni make out a deed to the property in question to Junior (Fred) Orris, alone. She then changed her mind and destroyed this first deed and made a second deed to Junior and his twin sister, Elizabeth. And this second deed is the one that is involved in this action. Garatoni further testified that the deed was signed at that time by Miss Aken and he told her that it was the first instrument of that kind he had prepared and that he would like to have it O.K'd by his superior officer at the Burnside Savings Bank. The deed was left in the possession of Garatoni for this purpose and a week or two later Miss Aken returned to the bank and was advised that the deed was O.K. and at the suggestion of Garatoni the deed was placed in the lock box of Miss Aken in the bank where it remained, as far as the record shows, until after Miss Aken's death, which occurred March 27th, 1936. The record that was made as to the deposit of the deed in the safety box was largely made by the trial court's interrogation of this witness. The witness testified, The witness further testified that Miss Aken and the witness together went back to the safety deposit vault and Miss Aken handed the witness her key and with this and the master key the box was unlocked, the deed placed therein, the box locked and Miss Aken's key returned to her. About the first of the year, 1936, Miss Aken slipped and fell and broke her hip. She was removed to a hospital in Fort Dodge, Iowa, where she died on March 27th, 1936. Soon after her injury she sent for Mr. Whipple's assistant in the post office at Lehigh, a Miss Bethel, gave her the key to the lockbox and asked her to obtain therefrom certificates of savings deposits and withdraw $100 in postal savings from the post office. Miss Bethel performed this service and left the key to the safety box with Mr. Whipple, the postmaster, where it remained until after the death of Miss Aken. The will was admitted to probate and Mr. Whipple was appointed and qualified as executor. He obtained the deed in question from the safety box and has since retained it. This action was brought in replevin, as we have heretofore stated, to obtain from Whipple, as executor, the possession of said deed.
The foregoing is all of the material and pertinent evidence produced upon the trial. Upon this record and from this evidence the trial court made a finding, a part of which is as follows: But the court further found and recited in its findings that " a long series of witnesses appeared at the trial, who with one accord testified that between that time and the time of her death she repeatedly spoke of this deed; said that she intended these plaintiffs to have the building; that she wanted...
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