Dorweiler v. Rosebush-Sinks, ROSEBUSH-SINKS

Citation148 N.E.2d 570,128 Ind.App. 532
Decision Date07 March 1958
Docket NumberROSEBUSH-SINKS,No. 18921,18921
PartiesJosephine DORWEILER and LuMilda Dorweiler, Appellants, v. Gertrude, and Thomas Sinks, Appellees.
CourtIndiana Appellate Court

George F. Stevens, Plymouth, Floyd O. Jellison, South Bend, for appellants.

Kizer & Neu, Albert B. Chipman, Plymouth, for appellees.

ROYSE, Presiding Judge.

This action involves a family dispute between the parties growing out of financial transactions between the appellant Josephine Dorweiler and her daughter, the appellee Gertrude R. Sinks. Hereinafter said appellant will be referred to as Josephine and said appellee as Gertrude. The appellant LuMilda Dorweiler, a sister of Gertrude, will be referred to as LuMilda.

Josephine instituted this action by filing her complaint against Gertrude. The complaint was in three paragraphs, also an amended fourth paragraph of complaint and a supplemental paragraph of complaint. Gertrude filed answer to each of said paragraphs of complaint. She also filed a cross-complaint in two paragraphs against Josephine and LuMilda. Answers to the cross-complaint were filed by Josephine and LuMilda. Each also filed an additional paragraph of answer seeking to quiet their title against the claim of title by Gertrude and her husband to certain real estate. Replies were filed to these paragraphs by Gertrude.

Trial to the court which, upon proper request, on February 29, 1956, entered its special findings of fact and stated its conclusions of law thereon. On May 28, 1956 it entered an additional finding of fact No. 37 and stated an additional conclusion of law thereon. Thereafter, on the same day it overruled appellants' motion for a new trial.

The special findings of fact take up more than twenty-one printed pages in appellants' brief. They may be summarized as follows:

Josephine and John A. Dorweiler were the parents of Gertrude and LuMilda. In 1927 he became mentally ill and was confined in the Logansport State Hospital until his death in 1942. After he was committed to the hospital the family lost all of their property and the mother went through bankruptcy.

Under a disability policy Josephine as guardian received $200 per month from 1927 until 1942. At the close of the guardianship she retained and used these funds. Both daughters signed releases, though no money was paid to either. On the death of the father Josephine received $1000.00 in a lump sum as beneficiary' from each of two insurance companies. Also, she received on another policy $12,000 payable in monthly installments of $200.

In 1934 Josephine had accumulated from guardianship funds and from earnings the sum of $2,000 which was paid toward the purchase of a farm in Marshall County, Indiana. Title to this farm was taken in the name of her husband. In 1939 this farm was sold and the proceeds applied to the purchase of the Holland farm. Titl to this farm was taken in the name of Josephine. From the time of this purchase Gertrude and her mother occupied this farm and participated in the management thereof. Gertrude did the largest part of the management and operation of said farm, except for two short intervals, until about 1946.

From 1938 to 1942 improvements costing from ten to fifteen thousand dollars were made and a mortgage debt of $6,000 was paid off from the proceeds of said farm and from insurance payments. During several years from 1938 to 1949 turkeys were raised in large numbers upon the farm. Gertrude initiated this project and, at least in the beginning, took the proceeds from the sale of said turkeys.

In 1940 Gertrude negotiated the purchase of the Thayer farm for $5,500. Gertrude and Josephine each paid part of the purchase price and title was taken in Gertrude's name. From 1941 to 1952 this farm was operated in much the same way as the Holland farm. Its management was handled for the most part by Gertrude.

In 1946 Gertrude began the construction of a 12-unit motel on U. S. Highway No. 6 on the Thayer farm, and a garage known as the Shell Station adjacent to said motel.

From the farm operations and insurance money there was placed in a bank safety deposit box cash and bonds in the sum of $25,000, to which box Josephine and Gertrude each had a key and access until 1952.

During the construction of the motel Gertrude needed money and Josephine turned over to her all said cash and bonds. Except for short stays LuMilda did not live with Josephine or assist in the management or work until 1952. On July 1, 1946 Gertrude executed her promissory note to Josephine for $25,000, payable on demand, with interest at 5% per annum.

During the latter part of 1946 Gertrude purchased the Baxley restaurant and Standard Oil Station for $33,000, and gave a mortgage on the Thayer farm to secure funds for this purchase.

Harry Rosebush was a creditor of Gertrude and was pressing her for payment of his claim, and threatened to file involuntary bankruptcy proceedings against her. On January 6, 1947 Gertrude and Josephine went to the office of W. O. Osborn, an attorney at Culver, Indiana, for advice. At that time and place Gertrude executed a warranty deed conveying certain real estate to Josephine for a stated consideration of $1 and other valuable consideration. By the terms of said deed Josephine assumed and agreed to pay off and discharge a certain mortgage executed by Gertrude to the Farmers State Bank of Lapaz, Indiana, and also the unpaid balance of $33,000 on a mortgage executed by Gertrude at the State Exchange Bank of Culver. On the same day the following contract was entered into between Gertrude as the party of the first part and Josephine as the party of the second part. It provides as follows:

'Witnesseth:

'That said first party is now indebted to said second party in the principal sum of Thirty Thousand Dollars ($30,000.00) as evidenced by a note of Twenty-five Thousand Dollars ($25,000.00) in addition to which she is indebted to said second party in the additional principal sum of Five Thousand Dollars ($5,000.00) for money advanced, making a total of Thirty Thousand Dollars ($30,000.00); that said money was loaned for the purpose of improving certain real estate owned by said first party, located in Marshall County, Indiana; that it is the desire of said parties to make a complete settlement covering any and all indebtedness which said first party might owe to said second party, and with this in mind the following agreement has this date been made between the parties:

'1. It is agreed that said first party will convey all the real estate which she owns, located in Marshall County, Indiana, to said second party for the following consideration:

'a. It is agreed that said Thirty Thousand Dollars ($30,000.00) indebtedness which said first party owes said second party is to be cancelled.

'b. It is agreed that said second party assumes and agrees to pay off and discharge the unpaid balance of Thirty-three Thousand Dollars ($33,000.00) of a certain mortgage given to the State Exchange Bank of Culver, Indiana, which was duly and legally recorded in Mortgage Record 148, page 500, of the records of Marshall County, Indiana.

'c. It is agreed that said second party assumes and agrees to pay off and discharge the unpaid balance of Four Thousand Dollars ($4,000.00) given to the Farmers State Bank, LaPaz, Indiana, and which was duly and legally recorded in Mortgage Record 149, page 29, of the records of Marshall County, Indiana.

'd. It is agreed that said second party assumes and agrees to pay off and discharge the unpaid balance of Two Thousand Seven Hundred Sixty-four and 21/100 Dollars $2,764.21) due State Exchange Finance Company, Culver, Indiana, for three year fire insurance policies, covering the property which said first party is to convey to said second party concurrently with the execution of this agreement, at which time all of said policies are to be assigned by said first party to said second party.

'e. It is agreed that said second party assumes all taxes against said property.

'It is especially understood that all of the real estate to be conveyed by said first party to said second party is free and clear of any and all encumbrances save and except said two mortgages and current taxes.

'It is especially understood that this sale and transfer is to be consummated concurrently with the execution of this agreement.'

On the same day Josephine executed the following will:

'Item I.

'I first order and direct that my just debts, including funeral expenses and expenses of last sickness be fully paid and satisfied.

'Item II.

'I hereby will and bequeath unto my daughter, LuMilda Dorweiler the sum of Fifteen Thousand Dollars ($15,000.00).

'Item III.

'I hereby will and devise unto my daughter Gertrude Dorweiler Rosebush, all of the real estate which she has conveyed to me of even date herewith, subject to the payment of any and all mortgages against said real estate.

'Item IV.

'I hereby will, devise and bequeath unto my two daughters, Gertrude Dorweiler Rosebush and LuMilda Dorweiler, the entire residue of all of my property of every kind and description, share and share alike, to each the one-half (1/2) part.

'Item V.

'I hereby nominate and appoint my daughter, Gertrude Dorweiler Rosebush as Executrix of this my Last Will and Testament.

'Item VI.

'I hereby revoke any and all other wills by me at any time heretofore made.'

That said deed and contract did not constitute the entire transaction between the parties in all of its terms but that there were portions of said transaction not incorporated in said deed and contract.

That said Osborn was also an officer of the State Exchange Bank of Culver and the State Exchange Finance Company of Culver. Said bank and finance company continued to hold Gertrude primarily liable on said mortgage in the sum of $33,000 and for insurance premiums in the amount of $2,764.21. Said $25,000 note given Josephine by Gertrude remained in the lock box and was...

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