Ballard v. Drake's Estate
| Decision Date | 20 January 1937 |
| Docket Number | No. 15679.,15679. |
| Citation | 5 N.E.2d 671,103 Ind.App. 143 |
| Parties | BALLARD v. DRAKE'S ESTATE et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Shelby Circuit Court; James A. Emmert, Judge.
Proceeding by Albert F. Ballard against the Estate of Frank Drake, deceased, of which the Farmers National Bank was administrator. From a judgment for defendants, plaintiff appeals.
Affirmed.Isaac Carter, of Indianapolis, and A. E. Lisher, of Shelbyville, for appellant.
Wilbur F. Pell, of Shelbyville, for appellees.
This is an appeal from a judgment for defendant, on a claim filed by appellant against the estate of Frank Drake, deceased.
The cause was submitted to the court for trial without a jury, and the court, having been duly requested to do so, made a special finding of facts and stated conclusions of law. Appellant filed a motion for new trial, which was overruled. On appeal, appellant assigns as errors that the court erred in each of its conclusions of law, and in overruling appellant's motion for a new trial.
The facts as found by the court, and the conclusions of law, are as follows:
“1. That some time before the year 1919 one Martha Morrison died leaving certain property situated in the States of Illinois, Ohio and Kentucky, which property she owned at the time of her death.
“2. That she left surviving her certain heirs of the whole blood and also heirs of the half blood.
“3. That after her death a controversy arose between the heirs of the whole blood and heirs of the half blood, wherein said heirs of the half blood claimed an interest in the estate left by said decedent.
“4. That Francis Morrison Hasse, was the only heir at law of a half brother of said Martha Morrison, deceased, but that Frank Drake never represented her in any matter involved in this controversy.
“5. That Frank Drake and Lauren Drake, were the children of a half sister of Martha Morrison, deceased.
“6. That Rosamond Drake and Morris Drake were the only surviving children of a brother of Frank Drake and Lauren Drake, said brother being a son of a half sister of Martha Morrison, deceased.
“7. That Charles A. Dole and Margaret Emma Dole were the sole surviving heirs of a half sister of Martha Morrison, deceased.
“8. That Samuel J. Ballard and Wayland C. Ballard were the surviving children of a half sister of Martha Morrison, deceased, and Elsie Filsinger and Albert Ballard were the sole surviving heirs of a brother or sister of Samuel Ballard and Wayland Ballard.
“9. That Frank Drake, the defendant's deceased, about the year 1919, undertook to organize the Drake heirs, the Dole heirs and the Ballard heirs for the purpose of securing their alleged interest as heirs of the half blood of Martha Morrison, deceased.
“10. That said Frank Drake had an oral contract with Albert F. Ballard, claimant herein, whereby said Frank Drake as the agent for said Albert F. Ballard, was to secure for said Albert F. Ballard, whatever interest he might be legally entitled to as an heir of a half blood from the estate of Martha Morrison, deceased; that said Frank Drake, was to receive for his services the sum of 30% which might be realized from the property owned by Martha Morrison, deceased, from which 30% said Frank Drake was to pay all attorneys fees.
“11. That said claimant was to allow said Frank Drake in addition his proportionate part of court costs and incidental litigation as might be incurred in the prosecution of claimant's claim.
“12. That said Frank Drake instituted certain litigation proceedings in the state of Kentucky which were unsuccessful and all of the heirs of the half blood of Martha Morrison, deceased, realized nothing from her said estate as the result of this litigation. * * *
“13. That certain litigation was instituted by Frank Drake in the State of Illinois, out of which litigation said Frank Drake realized for the Drake heirs, the Dole heirs and the Ballard heirs, a sum of $12,500.00. * * * That said sum was paid to said Frank Drake on April 7, 1920.
“14. That there was paid on October 17, 1921, to Frank Drake, as the agent for the Drake heirs, the Dole heirs, the Ballard heirs the sum of $16,788.75, for all the interest which said heirs had in the estate and property of Martha Morrison, deceased, in Ohio.
“15. That said Frank Drake paid for revenue stamps on certain documents involved in said matter the sum of $17.50. * * *
“16. That said Frank Drake paid to Charles A. Dole, all sums of money for said Charles A. Dole and his sister Margaret Emma Dole.
“17. That Nettie M. Randolph was claiming to be an heir and entitled to some interest in the money secured for the Ballard heirs. That Frank Drake, made on the following dates payments in the sum set opposite each date to the heirs under mentioned.
“That all of the above receipts were deposited by Frank Drake in the Farmers National Bank of Shelbyville, Indiana, and all payments were made from his account by bank drafts.
In support of the alleged errors that the court erred in each of its conclusions of law, appellant contends: * * *”
We do not think that the facts found by the court necessarily constitute a constructive trust.
[1] A constructive trust is one which arises by operation of law, and is based on fraud, actual or constructive.
[2] Constructive fraud is fraud which arises by operation of law, from “acts or (a) course of conduct which, if sanctioned by law, would, either in the particular case or in common experience, secure an unconscionable advantage, irrespective of the existence of evidence of actual intent to defraud.” Leader Publishing Co. et al. v. Grant Trust & Savings Co., Trustee (1915) 182 Ind. 651, 108 N.E. 121, 124.
[3] If Drake's representations to appellant that the sums paid to him were his “net distributive share” ( 21) were untrue, such fact would not warrant the conclusion that constructive fraud arose. Furnas v. Friday (1885) 102 Ind. 129, 1 N.E. 296;Kirkpatrick v. Reeves et al. (1889) 121 Ind. 280, 22 N.E. 139. In the absence of any finding to the contrary, we may assume for the purpose of this opinion, in so far as appellant's said contention is concerned, that appellant, at the time of the distribution, knew the total amount received by Drake as agent of all of said heirs, that appellant knew the amount of court costs, of which he had agreed to pay his proportionate share ( 11), that appellant at that time checked the figures against Drake's representations, and concluded that Drake's figures were correct, or so nearly correct that appellant abandoned...
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...Co. et al. v. Grant Trust and Savings Co., Trustee (1914), 182 Ind. 651, 660, 108 N.E. 121, 124.' Ballard v. Drake's Estate, 1937, 103 Ind.App. 143, 148, 5 N.E.2d 671, 674. 'Fraud, however, may exist without any intention to 'do a wrong,' as the law itself may, under certain conditions, dec......
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...Leader Publishing Co. et al. v. Grant Trust and Savings Co., Trustee (1914), 182 Ind. 651, 660, 108 N.E. 121." Ballard v. Drake's Estate (1937) 103 Ind.App. 143, 148, 5 N.E.2d 671. Constructive fraud has also been defined as 'a breach of legal or equitable duty which, irrespective of the mo......
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Shafer v. Lambie, 71A03-9506-CV-206
...court has clarified the applicability of these differing statutes in the context of constructive trusts. In Ballard v. Drake's Estate, 103 Ind.App. 143, 5 N.E.2d 671, 675 (1937), the court set forth a rule governing which statute is applicable to claims for constructive trusts. The court in......
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