McKinley v. Overbay

• Decision Date: 05 October 1961
• Docket Number: No. 19380,No. 1,19380,1
• Parties: Wilifred A. McKINLEY, as Executrix of the Last Will and Testament of Orlando Overbay, Deceased, Wilifred A. McKinley, Appellants, v. Mary J. OVERBAY, Appellee
• Court: Indiana Appellate Court

Page 389

177 N.E.2d 389

132 Ind.App. 272

Wilifred A. McKINLEY, as Executrix of the Last Will and

Testament of Orlando Overbay, Deceased, Wilifred

A. McKinley, Appellants, v. Mary J. OVERBAY, Appellee.

No. 19380.

Appellate Court of Indiana, Division No. 1.

Oct. 5, 1961.

Shake & Welsh, Vincennes, J. Raymond Powell, Linton, for appellants.

Lewis & Lewis, James J. Lewis, Horace Foncannon, Vincennes, McDonald & McDonald, Princeton, for appellee.

COOPER, Judge.

This is an action wherein an executrix of the estate of Orlando Overbay sought to partition real estate and quiet title to an undivided one-half interest therein upon the theory of an alleged resulting trust against the appellee herein, Mary J. Overbay, in the Circuit Court of Knox County.

It appears from the record that the cause was venued to Greene County, and, after the issues were formed, the cause was submitted on the appellants' second amended complaint in two paragraphs; trial was by the court without the intervention of a jury, and, after submission, the court found against the appellants herein (plaintiffs below) on both paragraphs, and entered judgment for the appellee herein.

The assigned error before us is the trial court's action in overruling appellants' motion for a new trial. The appellants' motion for a new trial, omitting the formal caption, is as follows:

'1. The decision of the court is contrary to law.

'2. The decision of the court is not sustained by sufficient evidence.

'3. The court erred in permitting the defendant's witnesses to testify, over the plaintiffs' objections, as to statements made by the decedent, Orlando Overbay, in his lifetime.'

Being of the opinion that items two and three of said motion present nothing to us for determination, we will discuss those first.

Specification number two is that the decision of the court is not sustained by sufficient evidence, but, where, as in this cause, the appellants undertook the initial burden of proving a trust and that he was the owner of equitable title to the real estate involved, the finding of the court on that issue was negative to him, and he is, of course, without effective position to assert the insufficiency of the evidence to support the finding in that regard. This rule of law is so well known that we do not feel it necessary to cite many authorities on this point, as both the Supreme Court and our court have repeatedly held that such error presents no question for review. However, see the cases of Hinds, Executor etc., v. McNair et al., 1955, 235 Ind. 34, 41, 129 N.E.2d 553; Matthews v. Adoniram Grand Lodge of Perfection, 1958, 129 Ind.App. 395, 154 N.E.2d 806; Metrailer v. Bishop, Ind.App.1959, 162 N.E.2d 94.

Specification number three asserts error in permitting certain witnesses of the appellee to testify over the appellants' objections. The Supreme Court and our court have repeatedly held that to present error in the admission or exclusion of evidence, the motion for a new trial must set forth the question, objection, the ruling of the court and the answer, or at least the substance thereof. Ray v. State, 1954, 233 Ind. 495, 120 N.E.2d 176, 121 N.E.2d 732; Gernhart v. State, 1954, 233 Ind. 470, 120 N.E.2d 265; Hire v. Pinkerton, 1955, 126 Ind.App. 23, 127 N.E.2d 244; Henderson v. State, 1955, 235 Ind. 132, 131 N.E.2d 326; Highshew v. Kushto, 1956 (T.D.1956) 126 Ind.App. 584, 131 N.E.2d 652, 133 N.E.2d 76; § 1812, Flanagan, Wiltrout & Hamilton's, Indiana Trial and Appellate Practice.

It affirmatively appears that the appellants in their foregoing motion for a new trial do not state the grounds upon which the objection was based or the court's ruling thereon, and, is, therefore, subject to the same infirmities as are pointed out hereinabove. See Mustafov v. Metropolitan Life Ins. Co., 1955, 125 Ind.App. 388, 125 N.E.2d 824; Inter-Ocean Casualty Co. v. Wilkins, 1932 (T.D.1933) 96 Ind.App. 231, 182 N.E. 252. Therefore, no question is presented for our determination by the appellants' specification number three.

This leaves only specification number one of the appellants' motion for a new trial for our consideration, the same being, 'The decision of the court is contrary to law'. It is true, a negative verdict or decision may be attacked under such specification. See Hinds, Executor etc. v. McNair et al., supra, 235 Ind. at page 41, 129 N.E.2d 553; Wilson, Adm'x v. Rollings, 1938, 214 Ind. 155, 14 N.E.2d 905. In the Hinds case, supra, 235 Ind. at page 41, 129 N.E.2d at page 558, we find the following statement of law:

'If the undisputed evidence entitles the one hwo has the burden of proof to a verdict which has been denied him, such verdict is contrary to law. To determine this question we may consider only the evidence most favorable to the appellees, together with all reasonable inferences which may be drawn therefrom.

"It is only where the evidence is without conflict and can lead to but one conclusion, * * * that the decision of the trial court will be set aside on the ground that it is contrary to law.'

'Pokraka v. Lummus Co., 1952, 230 Ind. 523, 532, 104 N.E.2d 669, 673.'

In reviewing the record we find the following averment in Paragraph 1, item 6 of the appellants' second amended complaint:

'6. The record title to the whole of said descried real estate is in the name of the defendant, but said real estate was acquired and has been improved and operated with funds contributed in equal shares by the decedent, Orlando Overbay, and said defendant. The record title to said real estate was, by agreement between the said decedent and the said defendant, vested in the name of the said defendant on and with the understanding between them that said defendant would hold title to an undivided one-half interest in and to said real estate as trustee for the use and benefit of said decedent. Said defendant undertook to and did agree with said decedent to hold title to an undivided one-half interest in said real estate as trustee for said decedent.' (Our emphasis.)

And, in Paragraph 2, item 6 of the appellants' second amended complaint, we find the following averment:

'The record title to the whole of said described real estate is in the name of the defendant, but said real estate was acquired and has been improved and operated with funds contributed in equal shares by the decedent, Orlando Overbay, and said defendant. The record title to said real estate was, by agreement between the said decedent and the said defendant, vested in the name of the said defendant on and with the understanding between them that said defendant would hold title to an undivided one-half interest in and to said real estate as trustee for the use and benefit of said decedent. Said defendant undertook to and did agree with said decedent to hold title to an undivided one-half interest in said real estate as trustee for said decedent.' (Our emphasis.)

The foregoing averments, it seems to us, are phrased to aver an alleged express trust, as distinguished from a constructive or resulting trust. See Flanagan, Wiltrout and Hamilton, pp. 650-651.

The evidence and exhibits in the record are far more voluminous, comprising two hundred and eighty-three pages of testimony, than the meager evidence set forth in the appellants' brief, which consists of five and one-half pages.

We shall consider first the evidence in the record with reference to the aforesaid averments as to express trusts. In reviewing such evidence, it appears that the alleged and pretended agreement, if any, rested solely on parol.

Sec. 56-601, Burns' Stat., 1955 Repl., relating to such matters, provides:

'No trust concerning lands, except such as may arise by implication of law, shall be created, unless in writing, signed by the party creating the same, or by his attorney thereto lawfully authorized in writing.'

For our court's interpretation of this statute in similar matters, see Lehman v. Pierce, 1941, 109 Ind.App. 497, 36 N.E.2d 952, 954, 955, and Koehler v. Koehler, 1919 (T.D.1921) 75 Ind.App. 510, 121 N.E. 450, and authorities cited therein.

Measured by the above-announced doctrine of our court construing said § 56-601, supra, as found in the cases of Lehman v. Pierce, supra, and Koehler v. Koehler, supra, we fail to find any evidence that the foregoing alleged agreement was ever reduced to writing, signed by the parties or made a part of the deed. Nor, does it appear that anything was omitted from the deed which it was the intention of the deceased, Orlando Overbay, to have embodied therein. The failure of the evidence to affirmatively disclose such facts excludes the idea of an express trust in said real estate.

Notwithstanding the general rule of law that a complaint must proceed upon some definite theory (see the case of Millspaugh, Adm'r v. Northern Ind. Pub. S. Co., 1938, 104 Ind.App. 540, 12 N.E.2d 396), it is apparent from the appellants' brief filed in this cause that they have attempted to change the theory as to the alleged type of trust which existed between the deceased, Orlando Overbay, and Mary J. Overbay, the appellee herein in this court on appeal.

It is apparent from the record that in the court below, the appellants proceeded upon the theory of an express trust based upon an agreement, and now, on appeal, are attempting to proceed upon the theory of a constructive trust as set out in the argument portion of appellants' brief.

Under the evidence as reflected by the record and the law applicable to constructive trusts, the appellants cannot prevail even upon this theory for the following reasons.

Our Supreme Court in the recent case of Brown v. Brown, 1956, 235 Ind. 563, at page 567, 135 N.E.2d 614, 616, in defining a constructive trust, made the following statement:

"'A constructive trust, or as frequently called an involuntary trust, is a fiction of equity, devised to the end that the equitable remedies available against a conventional fiduciary may be available under the same name and...