Thompson v. Thompson

• Court: Iowa Supreme Court
• Writing for the Court: GAYNOR, C. J.
• Citation: Thompson v. Thompson, 178 Iowa 1289, 160 N.W. 922 (Iowa 1917)
• Decision Date: 15 January 1917
• Docket Number: 30844
• Parties: SUSIE THOMPSON, Appellant, v. EDWARD THOMPSON et al., Appellees

160 N.W. 922

178 Iowa 1289

SUSIE THOMPSON, Appellant, v. EDWARD THOMPSON et al., Appellees

No. 30844

Supreme Court of Iowa, Des Moines

January 15, 1917

Appeal from Story District Court.--H. E. FRY, Judge.

ACTION brought by a ward, on attaining her majority, against her guardian, to recover an amount of money received by the guardian, as such, and against the husband of the guardian for the wrongful conversion of the fund received. Judgment in the court below dismissing plaintiff's appeal. Reversed and remanded.

Reversed and remanded.

C. H Hall and George C. White, for appellant.

Hunn & Jones, for appellees.

GAYNOR C. J. LADD, EVANS and SALINGER, JJ., concur.

OPINION

GAYNOR, C. J.

This action was commenced in equity. In the petition as originally filed, the plaintiff alleges:

That, in July, 1901, a certain sum of money was due her from certain railway companies on account of injuries sustained by her through their negligence; that a settlement was had, and $ 500 paid on account thereof to her mother and father, Elsie Thompson and Edward Thompson, defendants herein. She alleges that, thereafter, the defendants Elsie and Edward Thompson held the money in trust for her; that the same was a trust fund in their hands; that her father invested said money in certain land, and, thereafter, in 1912, conveyed the land in which the money was invested, to her grandfather, T. T. Thompson, who is now dead. She says that the transfer was made without any consideration. The executrix of T. T. Thompson's estate was made a defendant. Plaintiff prays that she have judgment against the defendants Edward and Elsie for the $ 500, with interest, and that a decree be entered imposing a lien upon the land in which the money was invested, for the amount of her claim; that the land be sold, and she be paid out of the proceeds.

The defendant Susan Thompson, executrix of the estate of T. T. Thompson, appeared and filed answer, denying each and every allegation. Thereafter, Edward Thompson filed an amended and substituted answer, denying every allegation of the original petition, and alleged defect of parties, misjoinder of parties, and statute of frauds. Elsie, the mother, filed no answer and made no defense. At the close of the trial, the defendant Edward further pleaded that, if any money belonging to the plaintiff was received by him from his co-defendant, Elsie Thompson, the same was returned to her, and denies that the same was received in trust.

The plaintiff filed an amendment to her petition, and says that she has demanded of the defendants Edward Thompson and Elsie Thompson the return of said money, and they have refused. Alleges further that they have said fund in their possession and the same is being held by them in trust, and prays that a trust be declared in the hands of these defendants and each of them, and that she be given interest as aforesaid. Prays for other equitable relief.

The cause was tried to a court without a jury. At the conclusion of the evidence, the court dismissed plaintiff's petition.

The evidence discloses that the father and mother are divorced; have been divorced for some years; that the plaintiff is living with her mother; that the mother was appointed guardian of the plaintiff and was guardian of the plaintiff at the time this money was received; that the railway companies settled with her guardian and paid to her guardian $ 500 in 1901; that plaintiff was about three years old at the time; that she was between 18 and 19 years old at the time this action was commenced. It appears that the settlement was made with the mother as guardian of the plaintiff; that the $ 500 was paid her in the form of a draft; that she did not cash the draft herself, but endorsed it and turned it over to her husband, who had full knowledge of the fact that she held it as guardian for the plaintiff; that he has never paid it back.

There was testimony to the effect that Edward Thompson, soon after receiving the money, said that he was going to loan it out for plaintiff, so that she would have something to fall back on when she was grown up and became of age.

Edward Thompson testified in his own behalf:

"I received the draft, endorsed by my former wife, from the Pullman Company for $ 500 about the 1st of July, 1901. I put the money in the bank in my own name."

He denies that he ever agreed to loan the money out for the plaintiff. He says further that, about 60 days after he received it, he checked it out and paid for furniture, at the request of his wife. He says:

"When the furniture was bought, we agreed that the money we received was just like finding it, and we might as well spend it, and so I took this money from the bank and paid for the furniture. Checked it out for my wife. Didn't give the money back to her. Montgomery & Ward got it for furniture and carpets. I took the money that I got from the railway company to pay for furniture for her house in my name; for her home and the home where I kept my family. I took the $ 500 and most of it went for furniture and carpets. It was at my former wife's request that I took this money to furnish the house. I did not spend it; I objected to spending it. I lived with her a number of years after the furniture was purchased, and used the furniture. I am not willing to pay this $ 500 back. I lived with my wife about 10 years after this furniture was bought."

Though it does not appear in the abstract, it is asserted in argument, and not denied, that the plaintiff dismissed her claim against the executrix of the estate of T. T. Thompson, and any claim she made in her petition for a decree establishing a trust in the land described in the petition.

It appears that the defendant mother was appointed guardian of the plaintiff in Illinois, just prior to the time this settlement was made with the railway companies, and we take it the appointment was made for the purpose of effectuating the settlement. Upon the settlement, she received and held this money in trust for the plaintiff as plaintiff's guardian, subject to the order and direction of the probate court under which the appointment was made. It appears that no settlement has ever been made between the guardian and the ward. No claim is made in this suit, by the guardian or the father, for any accounting touching the guardianship matter. These defendants were the parents of the plaintiff, and are not claiming anything against this fund.

It will be noticed that the mother makes no defense. The father's defense is as shown in the pleadings and facts hereinbefore set out.

The only question left for trial was the liability of the father and mother to this ward (plaintiff), under the facts shown. The case was commenced in equity. The plaintiff invoked equitable relief, in that she prayed for the establishment of a resulting trust in certain land in which she claimed these defendants had invested...