Bullerdick v. Miller

• Decision Date: 11 June 1926
• Docket Number: 12,458
• Citation: 152 N.E. 280,85 Ind.App. 369
• Parties: BULLERDICK ET AL. v. MILLER ET AL
• Court: Indiana Appellate Court

152 N.E. 280

85 Ind.App. 369

BULLERDICK ET AL. v. MILLER ET AL

No. 12,458

Court of Appeals of Indiana

June 11, 1926

Rehearing denied December 8, 1926.

From Clay Circuit Court; Thomas W. Hutchinson, Judge.

Action by William Miller and others against Margaret Miller Bullerdick and another. From a judgment for plaintiffs, the defendants appeal.

Reversed.

Henry W. Moore, for appellants.

B. C Craig, for appellees.

OPINION

MCMAHAN, P. J.

This action was commenced in August, 1924, by William, Frederick and Conrad Miller against their sister, Margaret Miller Bullerdick, and Elizabeth Miller, their mother, and involves the ownership of eighty acres of land in Clay county. The cause was tried on the second paragraph of complaint, which alleges that in 1902, at a time when the plaintiffs were all under the age of twenty-one, they, having been emancipated by their parents, entered into an agreement with their mother by virtue of which they were to turn all money earned by them over to her for the purpose of purchasing the real estate involved in this appeal and that she should take the title to such land in her name, and hold it in trust for the said plaintiffs subject to a life estate in herself; that, pursuant to such agreement, their mother in 1902, purchased such real estate, paying for the same with the money of plaintiffs; that, pursuant to said agreement, their mother took the title to said land in her name to hold in trust; that plaintiffs turned their earnings over to their mother until the land was fully paid for; that in 1924, the mother conveyed said land to their sister, Mrs. Bullerdick, who at the time knew her mother was holding the land in trust for plaintiffs. The prayer was that a trust be declared in the land in favor of the plaintiffs, and that the deed to Mrs. Bullerdick be set aside. The issues were closed by a general denial. Before the commencement of the trial, which was on December 26, 1924, Conrad Miller, on leave of court, dismissed the cause in so far as he was concerned. The court found the deed to Mrs. Bullerdick should be set aside and declared void, that the mother, Elizabeth Miller, is the owner of a life estate in the land and that the three sons, William, Frederick and Conrad Miller are the owners of the remainder in said land after the death of their mother, each of them being the owner of an undivided one-third of such remainder. A decree was rendered accordingly. Appellants' motion for a new trial was overruled; hence this appeal. Conrad Miller has filed a confession of errors, and is making no claim to any interest in the land. Appellants contend that the decision is not sustained by the evidence and that it is contrary to law.

The facts as disclosed by the undisputed evidence are, in substance, as follows: Elizabeth Miller and her husband, Frederick Miller, came from Germany in the early 80's, and located in Clay county, Indiana. They raised a family of seven children, four girls and three boys. Appellee Frederick and the oldest girl were born in Germany. All the other children were born in Clay county. The father was a coal miner. Each of the boys when about fourteen years old began working in the mines and followed that occupation for many years. When the real estate involved was purchased, the father and the three boys were all working in the mines. The family at that time consisted of the parents and six children, the oldest daughter having been married before that time. The three boys were then all less than twenty-one years old. Frederick was twenty, William nineteen, and Conrad seventeen. It was a frugal and industrious family. The father, and the boys until they were twenty-one, as they received their pay, gave their money to the mother, who, as is frequently the case in families of that kind, looked after the business and financial affairs of the family. They lived in rented property until after they purchased the land in question, in March, 1902. The parents, in the presence of their children, had for a number of years talked about buying a home. The father was satisfied with renting. The mother was not. She wanted a place where they could raise some of the necessities of life. At one time, they agreed to buy a place in a small village, and after making five monthly payments of $ 5 each, they abandoned that purchase and lost the $ 25. (According to the testimony of the mother, this was when they were living on what is known as the Elliott place, and about ten years before they purchased the land in controversy, which is an eighty-acre farm, and for which they paid $ 2,000 in cash.) In March, 1902, the mother had on deposit in bank $ 900, which she had saved out of the wages of the father and boys. Mrs. Miller and her husband borrowed $ 1,100 and gave their note therefor, due April 1, 1908, and mortgaged the land to secure its payment. The $ 900 in bank and the $ 1,100 so borrowed were used in paying for the farm, and made up the whole of the purchase price of the land. They took possession of the farm, and after doing some plowing, built a house and barn, and did some fencing, and on December 26, 1902, moved onto the farm. When the land was purchased, it was conveyed to the mother by a warranty deed. In 1915, she and her husband conveyed the land to a trustee, who immediately thereafter conveyed the same to appellant Elizabeth Miller and her husband by the entireties. Frederick Miller, the father, died in April, 1924, and a few days later, Mrs. Miller conveyed the land to her daughter Margaret, who is one of the appellants. Payments were made on the $ 1,100 note as follows: April 1, 1903, $ 66 interest and $ 200 principal; October 3, 1903, $ 160; April 16, 1904, interest to date and $ 40 on principal; April 12, 1905, $ 242; April 23, 1906, $ 30 interest and $ 100 principal; April 1, 1907, $ 150. The balance due on the note was paid sometime in 1907. None of these payments were made by the boys.

With these undisputed facts before us, we will now review the evidence on which appellees rely to establish the trust. William Miller testified, in substance, as follows:

"I am 42 years old; worked in the mine until last three years; remained at home until I was nearly twenty-four years old; around twenty years old when farm was purchased; father and mother told us boys they wanted to buy a home; they said if we boys would stay with them and put our money toward buying a home, they would be willing to do so, and if we would stay with them and help them, the place would belong to the boys. We told them to go ahead and locate a place and we would stay with them and furnish our money toward a home. The first place they found they paid $ 25 on it and then let it go back. This was while we lived on the Kahn place. I stayed home about four years after the farm was purchased. I turned my pay envelop over to my mother just the same as my father and brothers did. This continued after I was twenty-one the same as before. Mother said the money would help pay for the place and it would belong to the boys. She said they had earned it and paid for it. After this I turned practically all I earned over to her after I was twenty-one. I cannot say how much I turned over except for one year, and I don't know whether this was before or after I was twenty-one. That year I turned over $ 1,002.92. After the land was purchased, mother said in the presence of my sister Margaret, that the place belonged to the boys, that they had worked for it and paid for it." On cross-examination, he said the conversation about buying the farm took place in the fall of 1901; that the folks had $ 900 on hand; that they said that would not buy it and that they would have to borrow $ 1,100; that his mother said the deed would be made to her and "heirs" and that "heirs" meant the boys; there was no other conversation until after the deed was made.

Frederick Miller, the oldest son, testified that he was at home when the land was bought; never had any conversation with his father or mother about buying the land; was in the mine the biggest part of the time; turned all of his money over to his mother; heard them talk; they were aiming to buy a piece of land and heard about the eighty acres; they said if the boys stayed with them it would fall to the boys; do not know whether the conversation was before or after the land was bought.

Lena Sanders, a sister of appellees, testifying as a witness for them said: She was between thirteen and fourteen years old when the land was purchased; before the land was purchased, her mother said they were going to buy an eighty-acre tract of land and the "boys were to stay with them and pay for the place and the place would belong to the boys * * * and it would belong to the boys providing they paid for it"; the fall before she was married, she had another conversation with her mother in which her mother said the "land would belong to her and the heirs," and that "heirs" meant the boys.

Another sister testified that the mother told her "She and the boys had bought it"; this was a short time after the place was bought.

Henry Kahn was a witness for appellees. He testified that he and appellees' father worked together in the mines as "partners"; that on an occasion when they were dividing their earnings, about a year after the land was purchased, Mr. Miller said "their share of the money would go as a payment on the farm, and he also said it was for the boys and the rest of the children, * * * This money goes as a payment on the farm, and the farm goes to all the children."

The mother testified she never had any conversation with any of the boys about buying the land and that there was no agreement with them concerning the purchase of the land or how the title should be held; that the...