Waddell v. Waddell

• Decision Date: 22 September 1909
• Docket Number: 2008
• Citation: 104 P. 743,36 Utah 435
• Court: Utah Supreme Court
• Parties: WADDELL v. WADDELL et al

104 P. 743

36 Utah 435

WADDELL v. WADDELL et al

No. 2008

Supreme Court of Utah

September 22, 1909

On Motion for Modification of Order November 8, 1909. Rehearing Denied November 8, 1909.

APPEAL from District Court, Third District; Hon. C. W. Morse, Judge.

Action by Leonora E. Waddell, as executrix of Isaac M. Waddell deceased, against William M. Waddell and others.

From a judgment granting insufficient relief, plaintiff appealed.

REVERSED AND REMANDED.

Stewart & Stewart, and E. A. Walton for appellant.

Moyle &amp Van Cott, Powers & Marioneaux, and N. V. Jones for respondents.

McCARTY J. STRAUP, C. J., and FRICK, J., concur.

OPINION

McCARTY, J.

STATEMENT OF FACTS.

The facts in this case, briefly stated, are about as follows:

Isaac M. Waddell died testate in Salt Lake City, Utah, about December 13, 1902. Plaintiff is the second wife of the deceased, and, under the last will and testament, is the sole devisee of all his estate. The will was duly admitted to probate, and in due course of the administration of the estate all of the property of which Isaac M. Waddell died seised was distributed to the plaintiff under and by virtue of the provisions of the will. The defendant William M. Waddell is a son of the decedent by his first wife. Prior to the year 1899 William M. Waddell became the patentee of 160 acres of land situate in Fremont County, Idaho. About the year 1899 he sold, and by warranty deed conveyed said land to his father for the sum of fifteen hundred dollars, which was to be paid to William M. Waddell in installments at such times and in such amounts as he might require to defray his expenses while attending a dental school in one of the Eastern colleges. The deed to the land was never placed on record, but remained among the private papers of the grantee until about November or December, 1902, when William M. Waddell got possession of the document and destroyed it.

There was a certain city lot constituting the old homestead of the Waddell family situate about the center of the block between Third and Fourth South streets and First and Second West streets in Salt Lake City, Utah, which was a part of the property distributed to the plaintiff under the last will and testament of Isaac M. Waddell, deceased. On July 2, 1904, plaintiff conveyed to the defendant William M. Waddell a portion of the old homestead lot for the purpose of enabling him to build a home thereon. There is a conflict in the evidence respecting the terms and conditions upon which plaintiff made this conveyance. She testified that defendant William M. Waddell orally agreed that, if she would deed to him a part of the lot mentioned, he would deliver to her the deed which he had given to his father to the Idaho property; that she consented to and did make the conveyance in order to avoid litigation over the Idaho property. She also testified that defendant William M. Waddell had surreptitiously and fraudulently taken the deed to the Idaho property from among his father's private papers subsequent to the latter's death, and that she would not have conveyed a part of the homestead lot to him if he had not promised to return to her the deed to the Idaho property; that she made a demand on him to reconvey to her the Idaho property, but that he refused to comply with her demand. On the other hand, defendant William M. Waddell testified that in the latter part of June, 1904, he offered to purchase from plaintiff a piece of the homestead lot; that she refused to sell, but, after some deliberation by her on the subject, she offered to give him a portion of the lot as a part of his share of the estate of his deceased father, and a few days thereafter made and executed a deed to him for a portion of the lot mentioned; that he took immediate possession of the tract of land thus conveyed to him and caused to be constructed thereon a substantial brick residence at a cost of between $ 2250 and $ 3000. On the 29th day of June, 1905, the defendant William M. Waddell intermarried with Florence Waddell, one of the defendants herein, and they took immediate possession of the house and ever since have continued to live therein. In December, 1905, William M. Waddell, without consideration, executed and delivered to his wife, Florence Waddell, a warranty deed to the house and lot mentioned. In the month of December, 1905, William M. Waddell sold and duly conveyed by warranty deed the Idaho property mentioned, and in consideration thereof received $ 2250. On May 15, 1907, plaintiff commenced this action as executrix of her husband's estate to recover judgment against William M. Waddell for the $ 2250 which he received for the Idaho land, with interest thereon, and for costs of suit. In her complaint she alleged, among other things, that--

"William M. Waddell willfully, wrongfully, fraudulently, in violation of his duty, and contrary to the interests of said estate of said Isaac M. Waddell and of the plaintiff, and with the intent and for the purpose of cheating and defrauding her of the property to which she was entitled by the said last will and testament of the said Isaac M. Waddell, . . . and without right or authority so to do, sold and transferred the said property situate in Fremont county, Idaho; . . . that the money so realized from the sale of said Idaho property has been expended by the said defendant William M. Waddell in the erection and construction of the said dwelling house heretofore referred to, . . . and in the furnishing of the same."

It is further alleged that "the said defendant William M. Waddell has invested a part of said funds in the purchase of certain pure bred collie dogs." It is admitted that defendant Waddell purchased one of these dogs (Belfield Bangle) in April, 1906, and paid therefor $ 270; that he gave this dog to Florence Waddell, his wife, one of the defendants herein; and that he purchased the other dog in January, 1907, paying therefor the sum of $ 500. Both of these dogs were owned by and in the possession of the Waddells at the time this action was heard in the district court. In the prayer of her complaint plaintiff asked that she be given judgment for $ 2250, with interest thereon, and that the judgment be declared a lien upon the land--a portion of the old homestead--which she conveyed to William M. Waddell and the improvements thereon, and on certain personal property hereinafter mentioned. Defendant William M. Waddell answered and denied the allegations contained in the complaint upon which plaintiff relied for a recovery.

A trial was had, and the court rendered judgment in favor of plaintiff and against William M. Waddell for the sum of $ 2250 and interest thereon at the rate of eight per cent. per annum, amounting in all to $ 2580, and for costs of suit, but found against plaintiff on all the issues presented by the allegations of fraud contained in her complaint. The court further found:

"That said deed [referring to the deed from William M. Waddell to Isaac M. Waddell to the Idaho land] did not come into the possession of the said William M. Waddell fraudulently and the same was not by him fraudulently destroyed, but was by him destroyed in good faith and because he believed he had the right to destroy it."

The court also found:

"That no part of said $ 2250 realized by the said William M. Waddell from the sale of said Idaho property has been expended by him in the erection and construction of the dwelling house, or any of the improvements made by him upon the city lot, . . . and no part of said sum of money was used or has been used by said defendant William M. Waddell for furnishing said house; . . . that none of the property mentioned in plaintiff's complaint was purchased with money realized from the sale of said Idaho land."

From that part of the decision which is adverse to plaintiff she has appealed to this court.

McCARTY, J. (after stating the facts as above).

We think the finding of the court that William M. Waddell came rightfully into the possession of the deed to the Idaho land, and that he destroyed the same, believing that he had a right to do so, is against the weight of the evidence, and therefore erroneous. The facts and circumstances leading up to and surrounding the destruction of the deed, when considered in connection with the testimony of plaintiff, tends to show that respondent William M. Waddell must have known that he had no right to destroy the deed. Plaintiff testified that, soon after the death of Isaac M. Waddell, she saw the deed at her home, and heard it read in connection with the last will and testament of the decedent; that, after the documents were read, the deed was put into a desk with other private papers of Isaac M. Waddell; that she afterwards searched for the deed, but could not find it. Respondent William M. Waddell testified that he obtained possession of the deed in the presence of his father about two weeks before his father's death; that on the same day he got possession of the deed he took it to his private office in the Templeton Building, this city, and there destroyed it; that he destroyed it because he thought it belonged to him. Why he did not destroy the deed at his father's residence when he first got possession of it does not appear. The fact that he took it to his office in the Templeton Building before destroying it is at least a circumstance tending to show bad faith on his part. He knew that he had sold the property covered by the deed to is father for value, and that his father had taken possession of it. Furthermore, his father in his will bequeathed all his property, including the land in question, to plaintiff, which shows conclusively that he did not intend to give it to respondent William M. Waddell.

It is contended on...