Kuhn v. Kuhn, 1-878-A-230

• Decision Date: 26 February 1979
• Docket Number: No. 1-878-A-230,1-878-A-230
• Citation: Kuhn v. Kuhn, 385 N.E.2d 1196, 179 Ind.App. 441 (Ind. App. 1979)
• Parties: Toni KUHN, Greg Kuhn and Mary Kuhn, Appellants (Plaintiffs Below), v. Charles KUHN and Glenda Kuhn, Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 1196

385 N.E.2d 1196

179 Ind.App. 441

Toni KUHN, Greg Kuhn and Mary Kuhn, Appellants (Plaintiffs Below), v. Charles KUHN and Glenda Kuhn, Appellees (Defendants Below).

No. 1-878-A-230.

Court of Appeals of Indiana, First District.

Feb. 26, 1979.

Goltra Harrison, Columbus, for appellants.

William H. Stone, Cline, King & Beck, Columbus, for appellees.

ROBERTSON, Judge.

Plaintiffs-appellants Toni, Greg, and Mary Kuhn (children) appeal from an adverse judgment in favor of defendants-appellees Charles and Glenola Kuhn.

We reverse.

In pertinent part, the trial court made the following findings of fact and conclusions of law:

1. That Clint N. Bowman was the owner of the following described real estate, to-wit:

That upon his death, pursuant to his last will and testament and the final decree in his estate, dated December 23, 1954, the defendant, Charles Wayne Kuhn, was devised a fee simple remainder interest in said real estate, the same to not vest until he reached the age of 30 years, and subject to a life estate in favor of his mother, Myrl Kuhn.

2. That the defendant, Charles Wayne Kuhn, and Dorothy Kuhn were married in the State of Kansas on July 23, 1950; that they had three (3) children, the plaintiffs, Toni Kuhn, born May 28, 1951, Greg Kuhn, born May 30, 1953, and Mary Kuhn, born April 30, 1955; that all of said children are now adults.

4. That in the year 1964, Charles Wayne Kuhn and Dorothy Kuhn separated, and on December 4, 1964 she filed an action for divorce in the Brown Circuit Court.

5. That during the pendency of the divorce, the parties thereto negotiated a settlement of matters relating to property and support for and custody of children; that the parties agreed, among other things, that Charles Wayne Kuhn would assign a two-thirds (2/3) interest in the property he would receive upon the death of his mother, Myrl Kuhn, to his children, the plaintiffs herein.

6. That on the 13th day of March, 1965, the said Dorothy Kuhn was granted a decree of divorce from Charles Wayne Kuhn 8. That the defendant herein, Charles Wayne Kuhn, knew at said time that he owned the fee in the real estate which his grandfather had devised by his will, but had always represented to Dorothy Kuhn that his mother, Myrl Kuhn, owned said real estate and he would receive it only at her death; that said Dorothy Kuhn relied upon said representation in making arrangements for said assignment.

9. That Dorothy Kuhn signed defendants' Exhibit CC (assignment) before the divorce was granted; that Charles Wayne Kuhn agreed to execute the same, but did not execute it until March 25, 1965, after the divorce was granted.

10. That no mention of said real estate or assignment was made either in the evidence heard in the divorce case or in the decree therein, and the terms thereof were not brought to the attention of the Judge before whom said divorce was heard.

11. That said assignment was executed by Charles Wayne Kuhn because "he wanted his children to have something." That said assignment was executed in behalf of said children by Dorothy Kuhn so that they would receive a two-thirds (2/3) interest in the real estate that Charles Wayne Kuhn would receive upon the death of his mother.

12. That the assignment was not a settlement agreement, but was negotiated during the proceedings relative to the divorce.

13. That said assignment was executed by Charles Wayne Kuhn as a gift in the future for his children.

14. That said assignment was executed by Dorothy Kuhn so that her children would have a two-thirds (2/3) interest in the property of Myrl Kuhn, including real estate, when she died.

15. That there is no evidence that Myrl Kuhn was informed of or consented to said assignment.

16. That said assignment was void as against public policy.

17. That said assignment was a gift to the plaintiffs herein made without adequate consideration.

18. That said assignment cannot be reformed.

CONCLUSIONS OF LAW

And the Court now states its conclusions of law on the facts found, as follows, to-wit:

1. The law is with the defendants.

2. That the assignment herein was for a mere expectancy, which is void as against public policy unless the ancestor through whom such expectancy may be derived assents to the same.

3. That said assignment being void as against public policy, a court of equity will not lend its aid to reform it.

4. That said assignment cannot be reformed because there was not adequate and full consideration given for the same.

5. That the plaintiffs shall take nothing by their complaint herein.

After the death of his mother, Charles deeded his interest to his second wife Glenola and himself as tenants by the entireties in total disregard of the assignment in issue.

For reasons unknown, and for which the briefs shed little light, the trial court relied heavily on the availability of the doctrine of reformation to "void" and gratuitous transfers. It is clear from the briefs, however, that in declaring the assignment void, the trial court was persuaded by McClure v. Raben (1890) 125 Ind. 139, 25 N.E. 179, and its successor McClure v. Raben (1892) 133 Ind. 507, 33 N.E. 275. These cases stand for the proposition that an assignment of an expectant interest in land, I. e., an interest which is not yet vested, May be avoided where the ancestor has not consented thereto. The McClure decisions were fundamentally based upon the belief that such assignments are wagers and fraught with potential overreaching by the assignee. Such assignments, however, were not held void Per se : "We are not prepared to say that some case might not arise in which it would be inequitable not to enforce a contract made with an heir for his future prospective inheritance in the estate of his ancestor . . . ." 125 Ind. at 147, 25 N.E. at 182.

These twin cases were limited to their facts, if not impliedly overruled, by McAdams v. Bailey, et al. (1907) 169 Ind. 518, 82 N.E. 1057, which involved facts analogous to those at bar. An heir with a vested remainder purportedly transferred his "expectant" interest to certain real estate. Our Supreme Court upheld the transfer as an equitable assignment and that upon realization of the expectancy, the heir/assignor could not be heard to renounce the assignment and claim the land as his own:

As to McClure v. Raben, supra, it is to be observed...