Schneider v. Schneider

• Decision Date: 25 January 1904
• Citation: 98 N.W. 159,125 Iowa 1
• Parties: MARY CATHERINE SCHNEIDER, Appellant, v. GERTRUDE SCHNEIDER, B. WESSLING, and B. WESSLING, Guardian of GERTRUDE SCHNEIDER, an insane person, Appellees
• Court: Iowa Supreme Court

98 N.W. 159

125 Iowa 1

MARY CATHERINE SCHNEIDER, Appellant, v. GERTRUDE SCHNEIDER, B. WESSLING, and B. WESSLING, Guardian of GERTRUDE SCHNEIDER, an insane person, Appellees

Supreme Court of Iowa, Des Moines

January 25, 1904

Appeal from Carroll District Court.--HON. Z. A. CHURCH, Judge.

Reversed.

Heinz & Fisher and George W. Paine, for appellant.

Salinger & Korte, for appellees.

OPINION

THE opinion states the case.--Reversed.

WEAVER, J.

On November 30, 1898, Caspar Schneider, a resident of Carroll county, Iowa, died intestate, leaving Gertrude Schneider, his widow, and Mary Catherine Schneider, his sister, his only heirs at law and next of kin. Gertrude Schneider is, and for some years has been, insane, and confined in the State Hospital at Clarinda, and is under the guardianship of B Wessling. The intestate died seised of an eighty-acre tract of land in Carroll county, and a lot in the town of Breda. So far as appears, the property was un-incumbered, and there were little or no liabilities against the estate, except a few small claims arising from the expenses of the last sickness and burial of the decedent. On December 16, 1898 Wessling was appointed administrator of the estate. Mary Catherine Schneider is, and during all her life-time has been, a resident of Germany. About two years after the appointment of the administrator, when the estate had been substantially settled, and the administrator was about to be discharged, said Mary Catherine Schneider, acting through the German consul at Chicago, and attorneys employed by him brought this action in equity for the partition of the eighty-acre tract, naming as the only defendants the widow, Gertrude Schneider, and B. Wessling, as her guardian. The petition alleged the death of Caspar Schneider intestate, while seised of said real estate, and that the title to the said property thereby became vested in plaintiff and the defendant Gertrude in equal shares, and demanded partition accordingly. The defendant guardian answered this petition, admitting all the material allegations of the petition, except the present ownership by plaintiff of any interest in the land, and alleged that before the commencement of the suit, plaintiff had "sold and disposed of her interest in and to said land," but did not allege to whom the sale had been made. At the next term of the district court, the cause being still pending, B. Wessling appeared, and upon his application, was made a defendant in his own right, and alleged he was himself the owner of the undivided half interest in the land claimed by plaintiff, having obtained the same by purchase from her. By a subsequent amendment to his pleading, he sets out certain letters between himself and plaintiff, upon which he relies as a contract of sale to himself, and, after alleging that he has performed the agreement on his part, asks that the title be confirmed in him. Plaintiff, replying, admits the writing of the letters, and says she was induced thereto by the fraud and deceit of Wessling, and further says that at a subsequent date the proposed or attempted sale was abandoned by mutual consent.

I. Before proceeding to a consideration of the merits of the case, it is necessary to examine a question raised by appellee as to the record. The evidence consists largely in letters which are written in the German language, and are said to have passed between plaintiff and Wessling. The appellee objects that the alleged translations set out in appellant's abstract are not proved to be correct, and he denies that they are correct, but does not seek to enlighten this court by any statement of what he believes to be the true interpretation. The letters themselves, in their original form were offered in evidence, and the appellant sets out in her abstract what she claims to be their contents. This she had the right to do, and appellees cannot, by a bare denial, put the correctness of such statement in issue. Supreme Court rules, section 31 (old rule 22). We shall therefore treat the letters as being correctly set forth in the abstract.

II. The record shows that Wessling, a man about seventy years of age, was the plaintiff's cousin, although for some reason he addresses her as "niece." He is evidently a man of intelligence, a native of Germany, and, at the time of the transaction under inquiry, had been a resident of Carroll county for many years. Plaintiff, about sixty-four years old, has never lived elsewhere than in Germany, has never visited this country, and is ignorant of its laws and customs. On the day after the burial of Caspar Schneider, Wessling wrote to plaintiff, addressing her as "Dear Niece," and gave her a detailed account of the illness and death of her brother. He then adds: "I have attended to everything. He had a nice funeral on the 3rd of December. Let him rest in the Lord. The worst was that he was unable to arrange his earthly affairs; he was bereft of speech too soon and died intestate, and his wife is in the insane asylum you know. Now the talk was that the state would take all the property but then I stepped in and have been appointed guardian by the court. Then it was said I would have to have an attorney who would have the legal knowledge and I was well acquainted in Carroll for I have served as juryman there for twenty years. I have had the law expounded to me and it turns out that the state could not take more than one-half of all the property that is here, city property valued at $ 400, and the land at $ 3,000. But I cannot sell it as long as your sister-in-law lives." On January 6, 1899, he wrote plaintiff again, acknowledging receipt of a letter from her, and saying, among other things: "I was in Carroll the day of your brother's death because here the general talk was that the state would get the whole property; so I saw my brother Joseph and your brother-in-law Henry Ailing (his wife is the sister of your brother's wife) we had a talk and they said unanimously 'You are the oldest and have served for a number of years as a juror so had better go and inquire into it thoroughly,' and I did. * * * The property cannot be sold as long as your brother's wife lives. Should she recover again, then she can take possession of the whole property as long as she lives." Referring apparently to a statement in plaintiff's letter to the effect that she had received a letter from a lawyer at Carroll, he warns her to beware of such assistance saying, "he knows how to charge $ 5 for an hour's work. And what is it he writes you? He offers himself to you that he can procure your share for you. Yes if he can get ten dollars from every $ 100 for his work. That is the way with lawyers in America. I will say so much; leave his letter unanswered because I can procure it for you and much cheaper." He then asks her for a power of attorney, and adds: "Dear Niece, do not be alarmed about your capital. I have got a complete bond in court for all the property what is there, above all, I have undertaken it and will manage it as well as my own." Responding to information thus imparted, plaintiff on January 28, 1899, wrote Wessling as follows: "Dear Cousin: * * * I am glad you have taken charge of the affairs of my deceased brother. * * * As I have already reached a good age and as conditions over there are strange to me I will make you the following proposition. Dear Cousin; what will you give me if I will make over to you my share in the leavings of my deceased brother? I believe it is better for both of us if we shall agree in this matter."

If defendant replied directly to this inquiry, it does not appear in the record. It is quite probable, however, that the entire correspondence is not in evidence. Under date of May 7, 1899, he writes: "Now as to the inheritance of your deceased brother. I can give you the following information. I have inquired thoroughly into everything before I could write you. This is the situation, as long as your sister-in-law lives nothing can be sold and I must keep up everything just so as at the time your brother was living. * * * She may live a long time yet and may not. She may recover and she may not. It is impossible for us to know; but I said as long as she lives it must remain as when your brother lived. I have had very much work in this matter but have undertaken it and will carry it out, because we are here, we have taken hold of the matter and will look out for you also so you will receive your share. How it will go further I cannot at present say. It will come before the court in September, then I will know how it is done." On September 3, 1899, he again writes explaining that he has been waiting because he wished to obtain information about the whole matter, and says: "Now I have made up my mind since I have talked the matter over with a sensible man. I will give you $ 1,000 for your share in the inheritance of your brother. It may be that in five or ten years it will be worth more. The matter is thus; nothing can be sold as long as your sister-in-law lives. The court says to me you can buy Schneider's sister's share but you can get nothing as long as Gertrude Schneider lives, should she recover she will be master of all as long as she lives. But understand it right; she can devise only one-half to her relatives; or should she die where she is now the state will get one-half of the whole property that is there. Now you know how the matter is situated as to everything. I have said to my wife and children I would pay you $ 1,000 for your share. Of course I will have no benefit of it. While I am still vigorous I am with one foot in the grave, for on March 15th, I have passed my seventieth year. I only want to do so that you might derive a little benefit from your deceased brother's property should you live...