Droege v. Brockmeyer

• Decision Date: 02 January 1943
• Docket Number: No. 33312.,33312.
• Citation: 7 N.W.2d 538,214 Minn. 182
• Parties: DROEGE v. BROCKMEYER et al.
• Court: Minnesota Supreme Court

7 N.W.2d 538

214 Minn. 182

DROEGE v. BROCKMEYER et al.

No. 33312.

Supreme Court of Minnesota.

January 2, 1943.

Rehearing Denied January 28, 1943.

Appeal from District Court, McLeod County; Mark Nolan, Judge.

Action by Herman F. Droege, administrator of estate of Henry Droege, deceased, against Christine Brockmeyer and another, to have defendants declared trustees of certain funds reaching their hands alleged to be property of plaintiff's intestate and for an accounting thereof. Plaintiff, being dissatisfied with the amount awarded, moved for amended and additional findings, or, in the alternative, for a new trial, and, the order being denied, plaintiff appeals.

Affirmed.

Fred Sorenson, of Minneapolis, for appellant.

Joseph P. O'Hara, of Glencoe, for respondents.

JULIUS J. OLSON, Justice.

Action to have defendants declared trustees of certain funds reaching their hands alleged to be the property of plaintiff's intestate and for an accounting thereof. Tried to the court, there were findings for plaintiff as to the existence of a trust, and, in addition, that there remained a balance in the trust fund amounting to $630.85, which, with interest from the date of decedent's death, defendants should pay. Plaintiff, being dissatisfied with the amount awarded, moved for amended and additional findings or, in the alternative, for a new trial. That order being denied, he appeals.

Plaintiff's father, Henry Droege, died intestate September 15, 1936, leaving as his sole heirs at law two sons, Herman, the plaintiff, and Edward, and two daughters, defendant Christine and Anna Lykin. Defendant Hugo Brockmeyer is Christine's husband. All the sons and daughters are of mature years, ranging from 50 to 59 years.

On and prior to December 12, 1924, decedent owned a life estate in 80 acres of land, the fee being in his son Edward, who also owned an adjoining 80-acre tract. Decedent held two mortgages given by Edward aggregating $10,000, each bearing interest at five per cent. Both mortgages were subject to prior mortgages aggregating $10,000 with some accumulated interest. On that day an oral arrangement was entered into between the father and the son Edward, on the one hand, and Christine and husband on the other, that the father would transfer to Christine the two mortgages owned by him and that he and Edward would convey to Christine the mentioned premises. The purpose of the arrangement was to have the land sold and converted into money as soon as a satisfactory sale could be made so that the proceeds therefrom could be used to take care of the father, who was suffering from an incurable ailment and whose demise might soon occur. All funds not needed for such purpose were to be divided amongst the children in equal parts when the father died. A buyer was found and a sale made on October 5, 1925, the total purchase price being $24,500. At that time there was due and unpaid upon the first two mortgages, with interest, $10,473.50. This was assumed by the purchaser. Out of the cash difference, other debts of Edward were paid, amounting to $3,334.62; this also pursuant to the original agreement. Needed expenses were incurred and paid, such as taxes, repairs on the farm, interest on a mortgage, and a commission of $490 on the sale of the farm, representing two per cent of the sale price. These items amounted to $1,323.53. The court accordingly determined that as of that date there remained in defendants' hands $9,368.35. It is the disbursement of this sum that affords the bone of contention in the present litigation.

The court allowed defendants a credit of $2,400 for taking care of decedent from May, 1920, to January 1, 1926, deducting $400 therefrom which had been paid by decedent.

From May 1, 1920, until decedent's death, he had resided with and was taken care of by defendants except for short periods prior to 1929, when he was taken care of by plaintiff or his daughter Anna.

In 1922 he became afflicted with "Parkinson's disease (creeping paralysis), and such affliction progressed gradually until his death." From 1928 until he died the paralysis became so complete that "he could not feed himself, dress or undress or even attend to his ordinary natural requirements without assistance."

For taking care of decedent during the years 1926 and 1927, defendants were credited at the rate of $40 per month. For the years 1928 and 1929, because of his further incapacity, the award was increased to $75 per month. For the year 1930 and until his death, they were allowed $90 per month. The court also gave them credit for $181.50 for "special furniture and equipment" needed and used for him. Other small credits were given for medical services and the like. In a carefully prepared summation from year to year, the final balance first above mentioned was arrived at.

The court's memorandum establishes beyond question that the court gave careful consideration to every item going into this long and difficult period of trust relationship. The court considered that "this was a rather difficult matter to determine because evidence in the matter covered a period that went back almost 20 years." Further difficulty arose by reason of the fact that in 1939 defendants suffered a bad fire loss in which most of the books, records, and papers pertaining to this affair were destroyed. Certain remnants were found, and these were utilized at the trial. From all the facts appearing the court became "satisfied that when Henry Droege turned the proceeds of the mortgages over to the defendants, that it was understood, that they should receive out of said funds credit for a reasonable charge for board and room and services, and that if any balance remained that it should be divided among his children at the time of his death. At the time this was done Henry Droege was already a very sick man and probably had little prospect in his own mind of living even as long as he did, which probably also accounts for the fact that more definite arrangements were not made at the time, which would have clarified some of the issues at the time of his death."

With respect to Christine's services and those of her family, the court said that decedent lived with her and her family and received from them "the most efficient and considerate care. From 1924 on the decedent required a great deal of extra care and attention such as a daughter would not ordinarily have to give to merely an invalid father. After 1928 his condition reached a point where he was practically unable to perform any of the necessary physical functions of existence without help from some member of the Brockmeyer family." He was in need of "constant attention" over a period of more than seven years. He was given "the most affectionate and considerate treatment," and, as a matter of fact, became such a burden that the Brockmeyer family were prevented from the ordinary "enjoyment of their own home and family life. * * * During all this period there was no satisfactory evidence that the other members of the Droege family were very anxious to exchange places with their sister, Christine, and provide the care and treatment that the Brockmeyer family did."

With respect to the interest rate charged against defendants upon the funds entrusted to their care, the court expressed the view that, since the original mortgages turned over to defendants drew interest at five per cent and in 1926 these funds were earning only four per cent, defendants should be charged at a five per cent rate computed upon an annual basis instead of the legal rate of six per cent, for which plaintiff contended. The total amount of interest so charged is $2,218.90.

On this phase finding No. 14 is important. It reads: "That on the 7th day of November, 1927, the decedent, Henry Droege, signed a written agreement under the terms of which the defendants herein were instructed to deduct such amounts from the trust funds in their control as would compensate them for the care and treatment, personal services, board and room and other items of necessary expense." And in its memorandum the court, in reviewing the facts, came to the conclusion that "they [defendants] should receive out of said funds credit for a reasonable charge for board and room and services, and that if any balance remained that it should be divided among his children at the time of his death." (Italics supplied.)

1. What problems are properly here for review? Plaintiff's blended motion was denied in toto. We have repeatedly held that denial of such a motion brings for review only that part of the order denying a new trial. Insofar as the order denied amended or additional findings, no appeal lies therefrom. Hoyt v. Kittson County State Bank, 180 Minn. 93, 94, 230 N.W. 269. Our latest case on this phase is State v. Riley, Minn., 7 N.W.2d 770, filed December 24, 1942. And, as we there held, a denial of that part of the motion (to amend the findings or to make additional findings) amounts to a finding contrary to what the moving party asks for. That is but a restatement of a long line of cases cited in Sheffield v. Clifford, 186 Minn. 300, 306, 243 N.W. 129, 132, where we said: "Where the court refuses to make proposed amendments or changes in the findings, that is equivalent to findings negativing the facts asked to be found." So, also, in Smith v. Benefit Ass'n of Railway Employees, 187 Minn. 202, 208, 244 N.W. 817, 819, where we said: "But where a motion for an amended finding affirmatively or negatively upon such issue is made, a denial of it is the equivalent of a finding contrary to that requested." (Citing cases.) The party "making the motion for a finding and meeting a denial,...