Vorse v. Vorse
| Decision Date | 21 March 1919 |
| Docket Number | 32225 |
| Citation | 171 N.W. 186,186 Iowa 1091 |
| Parties | NORMAN T. VORSE et al., Appellants, v. FRANK W. VORSE, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED JULY 7, 1919.
Appeal from Polk District Court.--W. H. MCHENRY, Judge.
SUIT in equity to establish a trust, and for an accounting. The petition was dismissed, and plaintiffs appeal. The facts, so far as material, are sufficiently stated in the opinion.--Reversed and remanded.
Reversed and remanded.
W. E Miller, for appellants.
Halloran & Starkey, for appellee.
Norman T. Vorse, the common ancestor of the parties to this suit, died testate, February 10, 1877, leaving him surviving his wife, Elizabeth, and two sons, Charles S. and Frank W., his only heirs at law. The son Charles S. died intestate in the year 1890, leaving his wife, Augusta T., and three children, Norman T., Charles S., and Florence (now Miller), his only heirs at law. The mother, Elizabeth, did not marry again, and died testate, January 14, 1915, at the age of 84 years, leaving as her only heirs at law her son Frank T. and the above-named children of her deceased son, Charles S. The will of Norman T. Vorse, which was duly probated, provided for the disposition of his estate as follows:
This action is brought by the widow and heirs of Charles S. Vorse, deceased, to charge the defendant, as trustee of Elizabeth Vorse, deceased, and to require an accounting at his hands for a large amount of property, money, credits, rents, and profits, alleged to have been obtained by him from his said mother without consideration, and by actual or constructive fraud. They also allege that Elizabeth Vorse executed and left a last will and testament, devising to the plaintiffs the one half of her entire estate, but that such will has been sequestrated or withheld from probate by the act of the defendant, in furtherance of the fraud and control of her property.
The defendant denies all of plaintiffs' allegations of fraud, admits that he received some part of the property, moneys, credits, rents, and profits belonging to his mother, but says that such gift or transfer was, in every case, made by her of her own volition and good will, without any fraud or undue influence on his part. He also pleads the statute of limitations.
Upon trial of the issues thus joined, the court found for the defendant, dismissed the bill; and plaintiffs appeal.
I. Were the property and estate of Elizabeth Vorse transferred to defendant without valuable consideration?
It will be seen from the terms of the will that, while Norman T. Vorse devised his entire estate to his two sons, they were made to take it charged with liability for the payment of the mortgage on the homestead owned by his widow, and the duty of furnishing her a "good and reasonable support" during her widowhood. There is no very explicit showing of either the aggregate or net amount of the estate, but defendant admits, in a broadly general way, that the portion received by him was worth somewhere from $ 40,000 to $ 80,000.
It appears that Charles was the active executor in the settlement of the estate, and, up to the time of his own death, it is probable that the mother's dealings with reference to the property were largely had with him. In the meantime, the administration of the estate was amicably accomplished and closed, each of the sons acknowledging receipt of his equal share therein. There is very little evidence of the details of transactions between mother and sons prior to the death of Charles, except a showing that, of the insurance received by her upon the life of her late husband, she lent $ 5,000 to each of the two sons, taking their several promissory notes therefor. These notes figure somewhat prominently in the later history of this case. It also appears that, during this period, the homestead property of the widow, mentioned in the will, was sold or exchanged for other real estate, title to which was taken in her name. It does not appear that the mortgage debt upon the homestead, payment of which was charged upon her husband's estate in the hands of her sons, was ever paid by them, and we think it must be assumed that it was not so paid.
Immediately after the death of Charles, defendant took charge of his mother's business and property affairs, and continued in that relation during the remainder of her life. She never had or employed any other agent or representative, attorney or counsel, with reference to her business or property during that period. In that time she acquired, or at least held, the legal title to a very considerable number of lots or tracts of land in the city of Des Moines, some of which were conveyed to her by the defendant, without any valuable consideration therefor.
It is the plea of the defendant, and he testifies, that, of the some 30 different lots and tracts of land, title to which was held by his mother and later conveyed to him, about 25 were so taken and held by her at his request, in trust for his benefit, and that she never had any beneficial interest therein. Of this trust there is no evidence in the title papers or record, and the sole proof of its existence is in the testimony given by the defendant in his own behalf.
Concerning the other property, concededly held by her in her own right and conveyed to the defendant, it is his claim and testimony that she conveyed it to him freely and voluntarily, without suggestion or influence on his part. He admits, however, that she conveyed to him certain lots for the expressed consideration of $ 1,800, for which he promised to convey to her six lots in a tract of land formerly owned by her husband, which, "for sentimental reasons," she desired to hold; but that he had never, in fact, made such conveyance, simply because she did not call for or demand it during her lifetime. He also admits that included in these conveyances to him was another tract, of the value of at least $ 7,500, the title to which he still holds, and that still other lots so conveyed to him he has sold and disposed of. During the same period, he collected and received rents and profits upon the property owned by his mother, to the amount of several hundred dollars per year, but says that, at the end of each year, he had a settlement of some kind with her, and for the balances or remainders found due her, he gave her his promissory notes. These notes were never paid, but, according to his testimony, were voluntarily surrendered or destroyed by her. She also assigned to him a mortgage, securing a debt of $ 1,300, concerning which he can give no explanation, beyond saying that he never got anything out of it, and that the debt must have been paid to her. In the year 1909, according to his story, she surrendered to him, without payment, the note given her by him for the loan of $ 5,000.
In the year 1910, the mother received a severe physical injury, and was taken to a hospital for treatment. At this time, all the property formerly owned or held by her had been transferred to the defendant, except an interest which she owned in a coal mining lease in Pennsylvania, which was yielding her an income of from $ 500 to about $ 1,500 per year. Shortly after such injury, and about the time she was returned from the hospital to the home of the defendant, she executed an assignment, prepared by the defendant, to himself, for this last remnant of her estate, without valuable consideration.
During all the period from 1890 to the death of Elizabeth Vorse, in 1915, defendant seems to have dealt with her on the theory that she was chargeable with all the expenses incurred for her care and support, in sickness and in health; and, in so far as any such charge or expense was paid by him, it was deducted from the proceeds or income derived by him from her property. Indeed, he suggests the idea that his father's will imposed upon the estate devised to him and his brother no other burden than the maintenance of the homestead in repair--a theory so untenable as not to be open to argument.
Assuming, as we must, that the mother did waive her statutory rights, and was content to accept the provision made by her husband in her behalf, the effect of that provision was the legal equivalent of a bequest to her of the amount of the mortgage indebtedness on her homestead property, and of whatever amount was necessary to maintain such property in repair and pay accruing taxes thereon, and to provide for the widow a good and reasonable support. It necessarily follows that whatever this woman may have received from the defendant by way of providing for her care or support, or for the expense, if any, incurred for attendance and nursing in sickness, or for other necessities of life, created no indebtedness on her part, and was, at most, the payment of indebtedness which defendant impliedly assumed and agreed to pay, by his acceptance of the devise in his favor, made subject to such duty on his part.
There was also an attempt made on the trial to show, by the defendant's own testimony, that...
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