De Freese v. Vanderford

• Decision Date: 24 October 1929
• Docket Number: 7 Div. 897.
• Citation: 220 Ala. 360,125 So. 228
• Parties: DE FREESE ET AL. v. VANDERFORD ET UX.
• Court: Alabama Supreme Court

125 So. 228

220 Ala. 360

DE FREESE ET AL. v. VANDERFORD ET UX.

7 Div. 897.

Supreme Court of Alabama

October 24, 1929

Rehearing Denied Dec. 19, 1929.

Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.

Bill in equity by L. J. De Freese and others against Y. B. Vanderford and wife to cancel a deed or establish a trust in lands. From a decree dismissing the bill, complainants appeal. Affirmed.

Merrill & Jones, of Anniston, for appellants.

S. W Tate, of Anniston, for appellees.

THOMAS J.

The final decree denied relief on the respective theories of the bill-that fraudulent dominance or undue influence was exercised (Cox v. Hale, 217 Ala. 46, 49, 114 So 465); or that a resulting trust existed. It will not be necessary that the recognized distinctions between implications of a resulting trust and the legal presumptions of an implied or constructive trust be here considered. Rudulph v. Burgin, 219 Ala. 461, 122 So. 432; Hill v. Hill, 216 Ala. 435, 113 So. 306; Montgomery v. McNutt, 214 Ala. 692, 108 So. 752; Blanks v. Atkins, 217 Ala. 597, 117 So. 193; Sanders v. Steele, 124 Ala. 415, 417, 26 So. 882; Bailey v. Irwin, 72 Ala. 505; Patton v. Beecher, 62 Ala. 579.

It is sufficient to say there were conflicting tendencies of evidence that were resolved by the trial court, after seeing the witnesses and hearing their evidence given ore tenus. Hackett v. Cash, 196 Ala. 403, 72 So. 52; Hodge v. Joy, 207 Ala. 198, 92 So. 171; Andrews v. Grey, 199 Ala. 152, 74 So. 62. And his holding supported the view that, after the death of grantor's wife, he sold the farms owned by them, one for $4,900, and gave $700 or $750 to each of his children, and invested $3,000 in the home which he conveyed to respondent. It was not unreasonable that he should have given his children the amount, or a sum in excess thereof, for which his wife's interest in the farm was sold, and retained the balance for his shelter, support, and maintenance during his last, lingering days of sickness unto death.

All of the evidence (except that of Dr. Kinnabrew) was taken in open court, and we will not disturb the result of the decree, whatever the theory on which the trial was had. The witnesses, who were not parties in interest, say the father and grantor was a man of strong or decided conviction, not easily persuaded, knew and understood the natural objects of his affection and the usual claims of the ties of blood or relation, was conscious, or not under the dominance of mental disorder, when the deed was made on August 4, 1924, about 14 days before his death. The proof tends to show the other children were better provided for by their material or worldly goods than was Mrs. Vanderford, and that the latter and her husband spent many months in the personal and necessary ministrations for the sick father.

The complainants did not testify that the father was not capable of making the deed when he did, and there was ample evidence, or reasonable inferences therefrom, that these appellants participated in the transaction of the sale of the farm, and thereby intended it as a gift to the father, or as repayment for the several sums of $700 or $750 he gave them when former sale was consummated. If the money paid for the last tract of real estate was that of the father, then no trust in the land could result in favor of his children, whatever be the alleged parol promise. However, the question of fact as to such alleged parol promise of Mr. De Freese to purchase other lands with the proceeds of the first sale, or with a part thereof, for the benefit of complainants, is controverted.

In view of the natural dominance usually or prima facie presumed to be exercised by a parent over the child, the latter is not required to prove the fairness of a conveyance or gift by the parent; that is, unless the evidence of surrounding circumstances overcomes the presumption of the dominance of the parent over the child. Gibbons v. Gibbons, 205 Ala. 636, 88 So. 833.

It will serve no good purpose to discuss the evidence in detail. The usual presumptions of dominance of the parent are not overcome by the circumstances of his continued illness and the natural services and ministrations of the child, without undue influence or dominating power or control of that child when the deed was made. The decree is affirmed.

Affirmed.

SAYRE, BROWN, and FOSTER, JJ., concur.

On Rehearing.

THOMAS J.

The averments of the bill as to the trust are that it was " agreed between the complainants and the respondents and the said R. P. De Freese that the said lands formerly owned by Venila L. De Freese should be sold by all of said parties joining in said conveyance, and that a part, if not all, of the proceeds of the sale of said lands should be invested in another home for the said R. P. De Freese in the city of Piedmont, Ala., and that title should be taken in the name of R. P. De Freese, who should own, occupy and enjoy said home during his lifetime, and after his death it should become the property of the complainants and the respondent Vashti Vanderford." It is further averred:

"That carrying out and in pursuance of said agreement the said property formerly owned by Venila L. De Freese was sold by the said R. P. De Freese, and the heirs of the said Venila L. De Freese, at and for the sum of $5,000; that there was purchased with $3,000 of the proceeds of said sale from L. J. De Freese, one of the complainants, the following described property, to wit: *** That said lot was conveyed by the said L. J. De Freese to the said R. P. De Freese under the understanding and agreement between all the heirs of the said R. P. De Freese and the said Venila L. De Freese, that the said R. P. De Freese should hold title to said lot during his lifetime, and that at his death it should become the property of his said heirs. That the said R. P. De Freese should use, have, and own a life estate in said last above described property, but that at his death it should become the property of his said heirs. That the remainder of the purchase money of $2,000 for the property formerly belonging to the said Venila L. De Freese was to be used by the said R. P. De Freese for his support and maintenance during his lifetime, and after his death the balance, if any, remaining on hand should become the property of said heirs."

The express trust averred in said paragraph 4 is denied by respondents, and it is averred:

"They deny the allegations of Section Four of the bill of complaint, but they say the truth of the matter is, that the complainants and respondents and R. P. De Freese, deceased, agreed to sell the land belonging to Venila L. De Freese and they should all join in the conveyance, but they say the proceeds of said sale was agreed by the parties to become the property of R. P. De Freese, deceased, and that the said R. P. De Freese should enjoy and own the same absolutely; and there was no agreement that it should become the property of any one else, or the complainants, or the respondent, Vashti Vanderford, after the death of R. P. De Freese. It is admitted by the respondents that the property described in section 4 was bought with a portion of the proceeds for which lands formerly owned by Venila L. De Freese were sold, but they deny there was any understanding or agreement between the heirs of R. P. De Freese and Venila L. De Freese that the said R. P. De Freese should hold title to the said land during his lifetime, and at his death, should become the property of his said heirs. It is further denied that, by agreement or otherwise, the property described in section 4 of the bill of complaint should go to R. P. De Freese, deceased, to have and to hold a life estate in said property, and at his death, it should become the property of his heirs. They further deny that $2,000, or any other portion of the purchase money for which the lands formerly belonging to the said Venila L. De Freese were sold, should be turned over to the said R. P. De Freese for his support and maintenance during his lifetime, and the balance, if any, should become the property of his said heirs; that said property was turned over to him to be absolutely his."

It is further averred:

"The fact is that R. P. De Freese had owned some real estate, and that the complainants visited R. P. De Freese and the respondents some time before the death of R. P. De Freese, and that R. P. De Freese then told each of them that he had sold his own farm and that he had the money for it, and that he was going to pay them for their share in their mother's farm, the said Venila L. De Freese, the sum of $750 each, and he paid to each of them $750 each, except the complainant, Hattie Wakefield. He gave to her Liberty Bonds, War Savings Stamps, and cash, all amounting to $750. All of the complainants and the respondent, Vashti Vanderford, agreed that on the payment of the $750 to each of them, that the said R. P. De Freese was to have the title to all of the lands of Venila L. De Freese, deceased, and after this agreement, the complainants each signed the deed to the lands of the estate of Venila L. De Freese, deceased, and agreed that the proceeds from said sale should be the property of R. P. De Freese, deceased, absolutely."

The amended bill sets up an implied trust as follows:

"That said property was conveyed by said L. J. De Freese with full knowledge of said R. P. De Freese and of complainants and respondents that the full purchase price of same was paid out of the proceeds of the sale of the property belonging to said complainants and respondent Vashti Vanderford, as above set out; that this was done under the general understanding and agreement as above set out in paragraph 4; that said R. P. De Freese was to have only a life estate in

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