Holsapple v. Schrontz

• Decision Date: 24 October 1917
• Docket Number: No. 9427.,9427.
• Citation: 65 Ind.App. 390,117 N.E. 547
• Parties: HOLSAPPLE et al. v. SCHRONTZ.
• Court: Indiana Appellate Court

65 Ind.App. 390

117 N.E. 547

HOLSAPPLE et al.

v.SCHRONTZ.

No. 9427.

Appellate Court of Indiana.

Oct. 24, 1917.

Appeal from Circuit Court, Martin County; J. W. Ogdon, Judge.

Suit by Vessey Holsapple and others against Leroy Schrontz. Judgment for defendant and order overruling motion for new trial, and plaintiffs appeal. Reversed with instructions.

Frank E. Gilkison, of Shoals, for appellants. Fabius Gwin, of Shoals, for appellee.

FELT, J.

This suit was brought by appellants against appellee by a complaint in three paragraphs.

The first paragraph was for partition of 240 acres of real estate in Martin county, Ind., in which it was alleged that the plaintiff Vessey Holsapple, Joseph Elliott, and the defendant Schrontz each owned the undivided one-fourth, and plaintiffs Annie Gerkin and Virgil Gerkin each the undivided one-eighth part, of the real estate described in the complaint; that Stoie P. Holsapple was the husband of Vessey Holsapple.

The second paragraph alleges, in substance: That Vessey Holsapple, Joseph Elliott, and Fay Elliott were children of Charity Elliott. That Annie Gerkin and Virgil Gerkin were her grandchildren, and the aforesaid persons were the only heirs at law of said Charity Elliott, when she departed this life in 1911. That at and prior to the death of Charity Elliott, Fay Elliott was the son and only adult child of Charity Elliott. That the other children and grandchildren aforesaid were minors, and all lived together as members of the family of Charity Elliott, their mother and grandmother. That said Charity had received from her husband a conveyance of the aforesaid real estate prior to his death, and the same was the only real estate owned by her; that shortly prior to June, 1911, Charity Elliott was ill with tuberculosis, and moved with her family from Martin county, Ind., to Weld county, Colo., for her health. That on June 17, 1911, she was very ill and believed she was soon going to die. That to save costs and expenses of administration and to protect her minor children she executed a conveyance to her son Fay Elliott of her personal property and the real estate aforesaid. That the property was conveyed by deed duly executed, and was in trust for the minor children and grandchildren of said Charity Elliott, which trust was created by the language of said deed as follows:

“Said party of the second part agreeing to use the rentals of said property to support the family and to educate the girls, and, if finally sold, to divide the price received therefor equally among the then living heirs or members of the family if of age, otherwise hold said shares till minors become of age.”

That said Charity Elliott died soon after she executed said conveyance. That the deed to Fay Elliott was shortly thereafter duly recorded in the office of the recorder of Martin county, Ind.; that in January, 1913, Fay Elliott, by deed of general warranty, attempted to convey all of said real estate to defendant Leroy Schrontz; that none of the plaintiffs joined in the execution of the deed to said grantee.

The paragraph contains detailed averments about the sale of timber, the collection of rents, the wrongful possession and use of all the farm by Schrontz, the claim of Schrontz to own all the land by virtue of the conveyance to him by Fay Elliott, and alleges the interest claimed by the plaintiffs; that the real estate is not susceptible of partition without damage, etc. Prayer for an accounting, for a decree of partition, and the appointment of a commissioner to sell the land and distribute the proceeds to the several owners in accordance with their respective interests.

The third paragraph is substantially the same as the second. It is also averred therein that the property of Charity Elliott was conveyed by her to Fay Elliott without any consideration and in trust for her minor heirs; that she died about four hours after she executed the deed.

Prayer that a trust be declared, and that said Schrontz be charged as holding the property in trust; that a trustee be appointed for an accounting and for all proper relief.

The deed to Fay Elliott is set out in full as an exhibit with the second and third paragraphs.

Issues were joined by general denials.

The court found for the defendant, and adjudged that plaintiffs take nothing by their action. Appellants moved for a new trial. The motion was overruled, and this appeal prayed and granted. The error assigned and relied on for reversal is the overruling of appellants' motion for a new trial. A new trial was asked on the ground that the decision of the court is not sustained by sufficient evidence; that it is contrary to law.

The deed executed to Fay Elliott by his mother purports to have been executed for a consideration of $1 and “other valuable consideration.” It is in the long form of bargain and sale with the usual covenants. The parties agree that the legal title is conveyed to Fay Elliott, but differ as to the effect of the clause above set out. Appellee contends that it only indicates the motive of the grantor in making the conveyance, and that it in no sense created a trust or affected the right of the grantee. Fay Elliott, to sell and convey the property as his own. Appellants contend that the language of the deed, when considered in the light of the situation and relation of the parties as shown by the undisputed facts of the case, clearly indicates the creation of a trust, by which Fay Elliott became trustee for the other heirs and members of his mother's family; that his conveyance of the legal title cannot defeat their right to the three-fourths part of such land; that he had no right to sell and convey the legal title to all of said real estate except in execution of the trust, in which event the deed contains provisions by which the other heirs of his mother shall have their interest in the land preserved to them; that appellee is charged by the record with notice of the contents of the deed to his grantor and the existence of the trust thereby created; that in no event could Fay Elliott dispose of the land in exchange for other real estate and personal property.

Fay Elliott testified, in substance, that he and the other heirs of his mother were living as members of her family when the deed was made; that she died about one hour after its execution; that it was executed in Colorado, and he took it with him to Indiana when his mother was taken back for burial; that he caused it to be recorded four or five days after its execution; that he sold and conveyed the land to appellee as his own individual property, and received therefor $1,100 in cash, two dwelling houses, and a post office and store building with its contents, at Mier, Ind.; that he received the rents while he had the farm, and used them in caring for the family, according to his agreement; that his mother had no other property to his knowledge except that transferred to him by the deed aforesaid.

As presented to this court, there is no dispute about the facts in any way bearing on the question of the creation of a trust or the showing of the grantor's motive, as the case may be, the determination of which the parties concede will control our decision. The question turns upon the meaning of the clause in the deed above set out relating to the agreement of the grantee as to the rentals, the support of the family, the education of the girls, the sale of the property, and the disposition of the proceeds.

[1] The word “trust” is frequently employed to indicate duties, relations, and responsibilities which are not strictly and technically trusts. In its technical application the word has been variously defined. In section 2, vol. 1, of Perry on Trusts the term is defined to signify an obligation upon a person arising out of a confidence reposed in him to apply property faithfully and according to such confidence. The same author in section 24 says trusts are divided in reference to their creation into express, implied, resulting, and constructive trusts; that an express trust is generally created by instruments that point out directly and expressly the property, persons, and purposes of the trust.

In section 964, vol. 2, Story's Equity Jurisprudence (13th Ed.) the learned author states in substance, that in the broad sense in which the term “trust” is employed in English jurisprudence, it is an equitable right, title, or interest in property real or personal, distinct from the legal ownership thereof; that the legal owner holds the direct and absolute dominion over the property, but the income, profits, or benefits thereof, though in his hands, belong wholly or in part to others; that the legal estate is thus made subservient to certain uses, benefits, or charges in favor of others, which constitute the trust cou...