Koehler v. Koehler

• Court: Indiana Appellate Court
• Writing for the Court: DAUSMAN
• Citation: Koehler v. Koehler, 75 Ind.App. 510, 121 N.E. 450 (Ind. App. 1919)
• Decision Date: 10 January 1919
• Docket Number: No. 9480.,9480.
• Parties: KOEHLER et al. v. KOEHLER et al.

75 Ind.App. 510

121 N.E. 450

KOEHLER et al.

v.KOEHLER et al.

No. 9480.

Appellate Court of Indiana, Division No. 2.

Jan. 10, 1919.

Appeal from Circuit Court, Clark County; Wm. Ridley, Special Judge.

Action by Louis Koehler and another against Henry Koehler, Adolph Koehler, and others. From judgment rendered, defendants named appeal. Affirmed.

This action was instituted by appellees Louis Koehler and Christopher Koehler against appellants Henry Koehler and Adolph Koehler, and appellees Carrie Whitsett and Howard Whitsett, and one Catherine Koehler, now deceased. Howard Whitsett is the husband of Carrie Whitsett, and was made a party in order that he might answer as to his interest, if any, in the subject-matter of the litigation by reason of his marital relation. Catherine Koehler, who was the wife of Henry Koehler, died before the trial of the cause. The action is to establish a trust in real estate and to cancel certain conveyances alleged to be in violation of the trust. Finding and judgment for appellees Louis and Christopher. The Whitsetts are made appellees solely because they did not desire to join in the appeal.

The following is the substance of so much of the special finding of facts as is material at this point:

“Louis Koehler, Christopher Koehler, Adolph Koehler, and Carrie Whitsett are the four children of Henry Koehler and his wife, Catherine Koehler. At the time of filing the complaint herein Christopher Koehler was about 46 years of age, Louis Koehler about 39 years of age, Adolph Koehler about 41 years of age, and Carrie Whitsett about 29 years of age. Henry Koehler and his said wife came from Germany to the United States between 30 and 35 years ago, and located near Sellersburg, Ind., at which time the three boys were with them. The daughter Carrie was born a few years afterward. The parents were very poor, being without property of any kind whatsoever, and had no means of support other than by their daily labor. None of the children was sent to school, except the daughter, who attended a district school for a short time only. None of the three sons can either read or write.

Prior to February, 1892, the family had accumulated some money from the joint earnings of the members thereof, and Henry and Adolph were about to use the money in the purchase of some real estate. In February, 1892, the father and his children entered into a parol contract by the terms of which the father agreed with the children that, if they would work and turn over to him the income from any work or business in which they might engage, the money so earned and contributed by them should constitute a common fund; that he would use the fund to purchase real estate from time to time as the opportunity offered; that he would hold the real estate so purchased in the name of himself, or of himself and wife, the mother of the children, in trust for all his said children; that he would not dispose of the real estate to be so purchased without the consent of the children; that he would hold all real estate which might thereafter be purchased with said fund for the benefit of said four children until the death of himself and wife, unless sold with the consent of the children; and that upon the death of both the father and the mother said four children should have the real estate to themselves, share and share alike. Relying on said agreement, the children did contribute their labor and money to said common fund; and, together with the contributions of their father, a common fund of money was created and placed in the hands of the father for the purpose of purchasing real estate in the manner aforesaid.

When Christopher was about 12 or 13 years of age he went to work at the cement mills near Sellersburg. For several years he earned about 75 cents a day, after which his wages were increased so that he earned from $1.50 to $1.75 per day. For 20 to 25 years he followed that work steadily. During all that time he lived at home, and turned over to his father all his wages except 50 cents a week, under said agreement. Finally he married and left home.

Louis Koehler lived at home until his marriage, which occurred about 11 years before the trial of this cause. Immediately after his marriage he went away and remained for about six months. Then he moved onto the farm, occupying a small house on a tract of three acres. He lived in this house without payment of rent for about five years. While growing up he worked on the land purchased by his father as hereinafter stated, and also worked at the cement mills. The money he earned was given to his father under said agreement. For 7 1/2 years he and Adolph engaged in the business of buying and selling hay. He obtained $700 from his wife and invested it in the hay business. He and Adolph cut timber and sold it, from one tract of the land to the amount of $900; and from another tract of the land to the amount of $400. All profits from the hay business and all money received for timber so cut and sold was put into said fund. During the time Louis worked on the farm he received no wages. The profit of his labor went into said fund.

Adolph Koehler remained at home and worked on the farm the greater part of his life, but worked at the cement mills occasionally. He received no wages for his work on the farm, but the profit derived therefrom and the wages he received for his work at the cement mills went into the fund aforesaid.

None of said sons paid board to their father. What clothes they wore the father purchased for them out of said fund. The family lived very economically, and the father deprived his children of all the luxuries of life and subsisted them upon the barest necessities.

Pursuant to said agreement, and for the purpose of carrying out its terms and conditions, and for no other or different purpose or intention whatever, said Henry Koehler purchased at different times ten tracts of land, aggregating about 240 acres. The title to part of said real estate was taken in the name of Henry Koehler, and the title to part of it was taken in the name of himself and his wife, Catherine Koehler. From time to time, at each time a tract of land was purchased, said agreement was renewed in substance and in fact; and the plaintiffs continued to work and earn money and transact business for the father and for themselves, and continued to put their earnings into the common fund in the hands of their father, and all purchases of land were made out of said common fund from time to time. The said agreement so made with said Henry Koehler, and all renewals thereof, were made without any fraudulent intent on the part of the parties thereto or any of them.

On the 5th day of July, 1910, said Henry Koehler and his wife Catherine Koehler, without any consideration whatsoever, executed to appellant Adolph Koehler a deed of general warranty for certain tracts of said real estate, aggregating about 175 acres. On the same day said grantors executed to appellee Carrie Whitsett, without any consideration whatsoever, their deed of general warranty for the remainder of said real estate, aggregating about 61 acres. This deed to Carrie was made without her knowledge or consent, and the deed to Adolph was made without any prior arrangement of any kind concerning any consideration therefor.

Henry Koehler and his said wife had possession of all the said real estate, and received and retained all the rents and profits derived therefrom, up to the death of Catherine, which occurred in August, 1912. Since the death of his wife Henry Koehler has received and retained all the rents and profits from said lands, and he still remains in possession thereof and receives and enjoys all the rents and profits therefrom.

Carrie Whitsett withdrew her appearance in this cause, refused to make any defense, and as a witness under oath admitted that the allegations in the complaint were true. Henry Koehler was personally in court during the entire trial. He heard all the witnesses testify, but he did not testify or make any denial of their statements or of any of the allegations of the complaint.

The two separate conveyances of said real estate made to Adolph Koehler and Carrie Whitsett, respectively, were made by Henry Koehler with the fraudulent purpose, intent, and design to avoid the effect and operation of said agreement, and of the trust in the said real estate resulting from said agreement and the creation of said common fund of money, and with the fraudulent purpose, intent, and design to deprive the plaintiffs of their share of said real estate, and was accepted by Adolph Koehler with full knowledge on his part of said fraudulent purpose, intent, and design, except as to the four acres described in item 40 of the finding, and he now claims to own that portion of said real estate so conveyed to him in fee simple. Carrie Whitsett makes no claim of ownership of the real estate so deeded to her, and she admits the existence of said trust.”

On the facts found the court stated the following conclusions of law:

“(1) That the law is with the plaintiffs. (2) That the agreement between Henry Koehler and his children is favored by the law as being in the interest of the family and the public. (3) That the common fund of money created by them pursuant to said agreement constituted a trust fund, and the real estate purchased with said fund became trust property to be held in accordance with said agreement, viz. by Henry Koehler and his wife during life, and at their deaths to go to their four children equally. (4) That whatever interest Catherine Koehler had in said real estate passed, at her death, to her husband by virtue of his marital rights. (5) That the plaintiffs are entitled to have the trust declared in said real estate, and that the respective shares of the parties therein should not be apportioned in accordance with the several amounts paid by each into the common trust fund, but should be apportioned in...