Marshall v. Minlschmidt
| Decision Date | 27 October 1966 |
| Docket Number | No. 10925,10925 |
| Citation | 23 St.Rep. 705,419 P.2d 486,148 Mont. 263 |
| Parties | Charles E. MARSHALL, Administrator of the Estate of Henry Verne Field, Deceased, Plaintiff-Respondents, v. William L. MINLSCHMIDT, Defendants-Appellants. |
| Court | Montana Supreme Court |
Robert L. Johnson (argued) Lewistown, Raymond E. Dockery, Jr., Lewistown, for appellants.
Charles Marshall (argued) Lewistown, Peter Rapkoch, Lewistown, for respondents.
This is an action brought by the administrator against the defendants-appellants to recover the assets of the deceased which had been transferred by the decedent to the defendants during his last illness and prior to his death.
Plaintiff-respondent claims the defendants employed fraud and undue influence to cause the decedent to transfer the property in question to the defendants. The property consisted of the deceased's bank account in the First National Bank of Lewistown, Montana, and an interest in cattle which the deceased and the defendants owned together.
The lower court found that an involuntary trust was created at the time of the transfer, and that while the funds transferred from the decedent's bank account and personal funds of the defendants were used to pay the expenses incurred by the last illness of the deceased and the funeral expenses, the plaintiff was entitled to the corpus of the trust arising from the residue together with interest. In effect, the lower court's judgment gave the respondent one-half the value of the cattle herd in which respondent's decedent had an interest. The defendants have appealed from the judgment.
On July 26, 1958, Henry Vern Field died intestate. He was survived by one heir-at-law, his adult son, W. Dale Field of Shawnee, Kansas. The respondent, an attorney at law, was appointed administrator of the estate.
The deceased was in the ranching business. In later years he was engaged in a cattle partnership along with his sister and her husband, the appellants in this case. Plaintiff-respondent's Exhibit 2, which is a certified copy of Marks and Brands from the Montana Livestock Commission, records the ownership of the partnership brand as follows:
'December 7, 1954 Wm. L. or Etta M. Minlschmidt or Vern Field, Lewistown, Fergus
'Cattle-right rib * * *.' Prior to this transfer of the brand, the brand was in the names of 'Wm. L. Minlschmidt and Etta M. Minlschmidt'. There was no consideration given between the parties for the transfer of December 7, 1954.
The deceased and appellants were quite close. Testimony indicates that the appellants handled all matters relating to the partnership and took care of deceased's personal affairs.
On June 27, 1958, deceased was taken to the hospital. During approximately the first ten days of deceased's confinement in the hospital his son and daughter-in-law came from Kansas and visited with him on several occasions. On one such visit deceased informed his son that he (deceased) owned one-half of the cattle on the ranch. The deceased requested that his son, daughter-in-law, and the appellants return to the hospital on a certain evening to discuss the division of the cattle, or the proceeds therefrom. The son and daughter-in-law returned to the hospital at the appointed time and waited until midnight. Appellants did not arrive at the hospital until after midnight. Testimony indicates that the necessary papers were signed but not in the presence of the son and daughter-in-law.
Deceased executed a check to one of the appellants, William L. Minlschmidt, for the full amount of his checking account in the local bank to wit, $2,528.24, and at the same time he executed an assignment of his interest in the brand on the partnership cattle. Plaintiff's Exhibit 2 indicates the transfer as follows: 'July 10, 1958 Wm. L. or Etta M. Minlschmidt * * *.' The trial court found no consideration was given for these two transfers.
The purpose of the transfers was to enable the appellant, William L. Minlschmidt, to promptly pay all bills and expenses incurred at the hospital and those surrounding his illness. Then, in the event of his death, appellant was to pay over an amount, which is in question here, to the deceased's son. Appellant expended the entire amount of the checking account for the expenses of the deceased's last illness and also spent $97.00 out of his own funds.
After the death of Henry Field, appellants and deceased's son agreed that the cattle would be kept on pasture until the following fall, when they would be sold and the sale price, less expenses, would be divided. The cattle were sold, and $14,000 was considered as the full sale price.
On December 1, 1958, the appellant, William L. Minlschmidt, executed and delivered a check to the deceased's son in the amount of $2,000. Noted on the face of the check was 'payment for cattle in full.' This notation was crossed out by the son, and the check was cashed.
The appellants list three specifications of error:
(1) Was there clear, satisfactory and convincing proof to support the existence of an involuntary trust?
(2) Was there sufficient evidence for the lower court to conclude that plaintiff-respondent, as administrator, was the owner of one-half of the cattle herd, rather than the one-third interest indicated by the recorded brand?
(3) Was this action barred by the statute of limitations?
We conclude that there is sufficient evidence to uphold the lower court's decision that the appellants are involuntary trustees of the property conveyed to them by the deceased. We stated in Lewis v. Bowman, 113 Mont. 68, 78, 121 P.2d 162, 167, that: See also Barrett v. Zenisek, 132 Mont. 229, 315 P.2d 1001.
In finding an involuntary trust the lower court relied heavily on the case of Huffine v. Lincoln, 52 Mont. 585, 593, 160 P. 820, 822. We said in that case: 'In such cases, as well as in those where the disposition is not testamentary, but is the fruit of confidence, the overwhelming weight of authority is that the promisor takes his advantage subject to the performance of his promise, and that subsequent repudiation is a fraud which operates to warrant the declaration of a trust without regard to the promisor's intention when the promise was made, or the presumption will be indulged, if necessary, that the promise was made without intention to fulfill it, and was therefore fraudulent.' (Emphasis ours.)
The relevant involuntary trust provision, section 86-210, R.C.M.1947, provides: 'One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he has some other or better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it.'
There is no doubt that the relationship between the deceased and the appellants was a very close, confidential one. They had a warm friendship which involved, among other things, the appellants' deep concern for the deceased's health. Further, practically all of the financial aspects of their partnership as well as those personal in nature to the deceased were handled by the appellants. They would but bulls, feed for the cattle, deceased's clothing, food, and prescribed medicine. Then the deceased from time to time would reimburse them for the money sent. As far as the partnership is concerned, however, there is no evidence to show that the deceased paid a definite share of the costs.
The record shows that the deceased had talked with his son and daughter-in-law. Both the son and daughter-in-law testified that the deceased said he had a one-half interest in the cattle and that upon his death, the one-half interest was to go to his son, Dale Field.
The evidence is strong that the appellants received deceased's property coupled with the obligations to pay all expenses of the deceased and then transfer some money to the son. Appellants did pay all deceased's expenses surrounding his last illness. Then, appellant, William L. Minlschmidt sent a check dated December 1, 1958, in the amount of $2,000 to Dale Field. The notation on the check 'Payment for cattle in full' clearly shows that the appellants did owe Dale Field some money from deceased's share in the cattle.
The $2,000 would not satisfy either the one-half interest in the cattle as claimed by the administrator or the one-third interest indicated by the brand record. We will not disturb the lower court's finding which declared that an involuntary trust was created.
Regarding the second specification of error, we must determine whether there is sufficient evidence to merit a finding that respondent as administrator should be entitled to the benefits of a one-half or a one-third interest in the cattle.
Again, an examination of the evidence is worthwhile. There is testimony of the son and daughter-in-law that the deceased told them of his one-half interest in the cattle. They testified further that the deceased told them that upon his death the one-half interest was to go to the son.
The only written evidence on record is plaintiff-respondent's Exhibit 2, a certified copy of marks and brands from the Montana Livestock Commission. The ownership of the brand as of December 7, 1954, was in the name of 'Wm. L. or Etta M. Minlschmidt or Vern Field * * *.' Then, on July 10, 1958, during the deceased's last illness, the brand was transferred to the names of 'Wm. L. or Etta M. Minlschmidt * * *.'
Testimony of appellant William...
To continue reading
Request your trial