Graham v. Plotner
| Decision Date | 14 May 1926 |
| Docket Number | No. 12144.,12144. |
| Citation | 151 N.E. 735,87 Ind.App. 462 |
| Parties | GRAHAM v. PLOTNER. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Miami Circuit Court; Albert Ward, Judge.
Action by Edith Graham, as administratrix of the estate of William Fisher, deceased, against William S. Plotner. From the judgment for insufficient relief, plaintiff appeals. Affirmed.Rhodes & Rhodes, of Peru, Ind., for appellant.
Albert H. Cole, Guy R. York, and Alton E. Rees, all of Peru, Ind., for appellee.
This is an action by appellant against appellee to recover certain Liberty bonds, in the total principal sum of $7,850, and treasury notes in the principal sum of $3,300, alleged to have been the property of William Fisher in his lifetime, and now to be a part of his estate, and which it is alleged appellee is asserting to have possession of and is claiming as owner, charging that appellee is an intermeddler, and has in his possession the keys to a safety deposit box in the First National Bank of Peru, Ind., where said bonds and treasury notes were placed for safe-keeping during the lifetime of the decedent, which safety deposit box was rented and used by both decedent and appellee. Appellant asks for the return of said property, and that she also recover judgment against appellee for the value of such property as he may convert to his own use, and for 10 per cent. damages. The complaint, in one paragraph, was under the intermeddling statute, to which appellee filed an answer in general denial.
Appellant requested the court to call a jury to try the cause, to which appellee objected, which objection was sustained, and the court overruled appellant's request, whereupon the cause was submitted to the court for trial, and the court made a finding of facts, in substance, that William Fisher died November 7, 1923, intestate, and left as his sole and only heirs at law appellant, a niece who has been appointed administratrix, a nephew, and other heirs, descendants of deceased brothers and sisters.
Fisher never married, and for many years prior and down to January 4, 1912, lived and made his home with appellant, and had accumulated about $8,700 which he had and owned at that time, and which was on deposit in the First National Bank of Peru, Ind., and represented by a certificate of deposit issued to him. He also had and owned at that time the undivided one-half of 220 acres of land and a life estate in 120 acres in Miami county. The decedent and a brother, Conrad Fisher, were neither ever married, and lived together with their father and mother on a tract of land containing 78 1/2 acres in Miami county until the death of their father, after which appellant and her family moved into said home and continued to live therein until July, 1910, when Conrad died. The husband of appellant was appointed administrator of the estate of Conrad Fisher, deceased, and as such allowed and paid to appellant for care of said Conrad Fisher the sum of $7,643.74.
After the death of said Conrad on July 28, 1910, said William Fisher continued to reside with the appellant a portion of the time until January 4, 1912, at or about which time they and some members of her family had some misunderstanding, and by reason thereof he left the home of appellant, walked a distance of approximately two miles to the home of appellee, and asked permission to stay at his home, which request was granted, and said decedent continued to reside at the home of appellee and his wife until his death, November 7, 1923, at which time said decedent was 91 years old.
During the time he resided in the home of appellee and wife they boarded, cared for, nurtured, and gave him their personal care and attention, nursed him through sickness, furnished him with a comfortable home, cared for him in his last sickness, and caused him to be properly buried. He paid no fixed sum to said appellee for such board and care, although he did some light work and chores. He lived in appellee's home as a member of his family and enjoyed its comforts. After he left the home of the appellant he never thereafter visited in her home, and she never thereafter visited him or spoke to him.
On August 1, 1910, he conveyed to appellant's husband for one dollar 120 acres of real estate, reserving a life estate therein, and on the same date by his separate deed he conveyed to said husband for $1 his undivided interest in the 78 1/2-acre tract upon which he and the Grahams and Conrad Fisher had been and were residing. Subsequent thereto he purchased of his nephews two other undivided interests in and to said tract, and died the owner of them. Appellant and her children have, since the death of said Conrad Fisher, continued to reside upon said tract, during all of which time the decedent received no rents and profits therefrom. He sold certain real estate during the time he lived in the home of appellee, in all, 120 acres, for $5,400 to appellee, and another tract for $1,700 to Earl Plotner. At the date of the death of said decedent he was the owner in fee simple of 93 acres of real estate, and an undivided interest in the 78 1/2-acre tract upon which appellant resides, and a note of Harlan Plotner for $3,500.
On March 15, 1918, said decedent and appellee rented of the First National Bank of Peru, Ind., a lock box in its safety deposit vault jointly, to which box each had access until the death of said decedent, after which it contained Liberty Loan bonds and treasury certificates as follows: $2,300 of treasury certificates in an envelope marked W. A. Plotner ($1,800 of these certificates were bought and paid for by said decedent, and $500 by appellee); treasury notes of the par value of $1,000 in an envelope with the name of “W. A. Plotner” indorsed thereon ($800 of these treasury certificates were bought and paid for by said decedent, and $200 thereof was bought and paid for by appellee); Fourth Liberty Loan bonds of $650 par value in the envelope with the $1,000 par value treasury notes hereinbefore described, purchased and paid for by appellee and his wife and belonging to them; Third 4 1/4 Liberty bonds, $5,000 par value, in an envelope with the name of “W. A. Plotner” written thereon, bought and paid for by said decedent; Fourth 4 1/4 Liberty Loan bonds of $2,200 par value, in the envelope with the Third 4 1/4 Liberty bond, $5,000 par value, bought and paid for by the decedent.
As early as the year 1916 the decedent expressed himself as being comfortable and happy in the home of appellee, and declared that he was going to take care of appellee and his wife therefor. At different times during the years 1922 and 1923 he expressed himself to various parties that appellee and his wife had been mighty good to him, that they had given him the best home he had had since his mother died, and at the time of making such statements said that he had given her bonds, that she was taking care of him, and declared that he had given them the bonds which he said would not recompense them for what they had done for him. In the fall of 1923 he said, “I have given them my bonds.” He had no bonds except those that were found in the safety box. The decedent, in recognition of the kind treatment accorded him by appellee and his wife, and of the comforts and conveniences which he enjoyed in their home, gave and delivered to appellee and his wife, said bonds which were found in said safety deposit box, amounting to $7,200.
Although all of said bonds remained in said box until after the death of decedent, appellee accepted the same as a gift, took possession thereof, collected interest thereon in 1923, and had notice and knowledge that the decedent had in fact given him said bonds as evidenced by his taking possession thereof, and his declaration in 1923 that the decedent had in fact given him some Liberty bonds, and all of said bonds are property of appellee and wife, and have belonged to them since they were given to them by decedent.
As to all said treasury notes, of the value of $2,600, appellee has asserted title and claim thereto, has refused to surrender same to appellant, and has unlawfully intermeddled therewith. They were the property of said decedent, and should be turned over and delivered to appellant administratrix, together with 10 per cent. penalty.
The court stated conclusions of law, upon the foregoing facts, that the law is with appellant, and that she is entitled to recover from appellee $2,600 worth of the treasury notes, and that appellee should turn over and deliver the same to her within thirty days, together with $260 penalty. After overruling appellant's motion to strike out parts of the special findings and appellant's motion for a...
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