Melloh v. Gladis

• Decision Date: 16 April 1974
• Docket Number: No. 474S84,474S84
• Parties: Ardis C. MELLOH, Defendant-Appellant, v. Mary A. GLADIS, Plaintiff-Appellee.
• Court: Indiana Supreme Court

Page 433

309 N.E.2d 433

261 Ind. 647

Ardis C. MELLOH, Defendant-Appellant, v. Mary A. GLADIS, Plaintiff-Appellee.

No. 474S84.

Supreme Court of Indiana.

April 16, 1974.

Rehearing Denied May 21, 1974.

Melville E. Watson, Greenfield, Michael B. Reddington, Indianapolis, for defendant-appellant.

Daniel J. Harrigan, Bayliff, Harrigan, Cord & Maugans, Kokomo, for plaintiff-appellee.

OPINION ON PETITION TO TRANSFER

HUNTER, Justice.

This cause arises upon petition to transfer and involves a dispute between a brother and sister as to whether they are to share equally certain real property originally owned by their deceased mother. The facts are undisputed that the decedent intended that the siblings equally share her prsonal property. The controversy centers on a deed, absolute on its face, which was executed during deceased's lifetime, and purported to convey certain real property to the defendant. The plaintiff alleged in her complaint the following (as taken from the Court of Appeals opinion):

'. . . that she and Ardis were siblings and that their mother was Cecilia I. Melloh, who died on March 16, 1964. Cecilia Melloh was predeceased by her husband, the father of Mary and Ardis, who died after a protracted illness and left all of his estate to Cecilia. Prior to her death Cecilia discovered that she had terminal cancer, and fearing a period of increasing disablement concluding indeath, she had the family home and a savings account put in joint name with Ardis and his wife. Mary alleged that this was done so Ardis could administer the family affairs during Cecilia's decline and that Ardis promised Cecilia that upon her death he would pay to Mary an amount equal to one-half the value of the property entrusted to his care after the expenses of Cecilia's illness and burial were deducted.

'Other significant allegations of Mary's second amended complaint are as follows: that Cecilia was deceived by Ardis' promise that he would pay half the value of the property to his sister when, in fact, Ardis had then formed the intent to keep all of the property for his own use and benefit; that since Cecilia's death Ardis has repeatedly acknowledged his financial obligation under the agreement with his mother to Mary; that the first time Ardis clearly repudiated his agreement with his mother was on November 26, 1969, when his deposition was taken; that the family house has been sold by Ardis for an amount unknown to Mary; that by operation of law Ardis became a trustee for the performance of his promise to his mother and Mary became the beneficiary of a constructive trust; that Mary has demanded that Ardis pay to her what is owed and said demand has been refused; and that Mary demands judgment against Ardis in the amount of $14,559.95 plus interests and costs.' (emphasis added)

At the conclusion of all the evidence, the trial court rendered its findings of fact and conclusions of law, which, for the most part, corresponded to the allegations of Mary's complaint. However, although Mary alleged that she was the beneficiary of a constructive trust, the trial court found that she was the beneficiary of a resulting trust and entered judgment for her in the amount of $14,410.38.

Ardis appealed and the Court of Appeals, First District, reversed and remanded. (301 N.E.2d 659)

The Court of Appeals placed great weight on the conflicting nature of the testimony relating to a meeting between the mother, Mary, Ardis, and the family attorney. At the meeting, the mother, aware of her illness, deeded the house to Ardis and his wife for one dollar in consideration. The deed was absolute on its face. According to Ardis and the attorney, the mother never made any statement or expressed any intention that Ardis share the value of the house with Mary. Mary, however, testified that the mother stated at the meeting, as well as on prior occasions, that Mary and Ardis were to share everything including the house, equally and that the house was deeded to Ardis with the agreement that Ardis would owe Mary half the value of it. It was further agreed that Ardis would take care of the family's financial matters while Mary would live with and care for the mother until her death.

Mary has filed a petition to transfer with this Court. She first contends that the Court of Appeals erred by applying IC 1971, 30--1--9--6 through 30--1--9--8 to this case. She argues that these sections do not apply to the facts of this case because their application is limited to 'trusts concerning lands' whereas her interest, which allegedly is an amount equal to one-half the value of the house, is personal property. Although this contention is probably meritorious, Mary offers no argument in support thereof other than a mere assertion of the proposition. This contention, therefore, will not be treated and is deemed waived. A.P. 8.3(A)(7).

Mary further contends that the Court of Appeals contravened a ruling precedent of this Court found in Friend v. Lafayette Joint Stock Land Bank of Lafayette (1938), 213 Ind. 408, 13 N.E.2d 213, which is that if there is any evidence which fairly tends to establish the facts found, the findings will not be disturbed. Here, the Court of Appeals stated its holding as follows:

'We are of the opinion that the testimony relied upon by the trial court to find a resulting trust does not, as a matter of law, possess the qualities of clearness, fullness and persuasiveness required to substantiate Mary's claim as a beneficiary. As indicated in the summary of evidence contained herein, the testimony was sharply conflicting to a point where a resulting trust theory was not exclusively compatible with some other result.

'Having held that under the facts of this case that no resulting trust exists, the cause is reversed and remanded for further action not inconsistent with this opinion.' 301 N.E.2d at 662.

To reach this result the Court of Appeals first noted that, although parol evidence is admissible to establish a trust, it must be received with caution, and then apparently applied the following standard of proof, as stated in Costa v. Costa (1953), 124 Ind.App. 128, 115 N.E.2d 516:

'Courts generally hold that to sustain a trust relation by oral evidence that the proof thereof must be clear and distinct; that it must be shown whether the trust is expressed, resulting or constructive and that the standard of evidence for such purpose is a superior measure of proof. The evidence must be higher in quality to substantiate the same--that is, in clearness, fullness and persuasiveness. (Authorities omitted).

'In order to successfully prove the existence of a trust by parol evidence alone, it must appear that such evidence adduced at the trial is not compatible with any other result.' 124 Ind.App. 134, 115 N.E.2d 519.

The above quoted language from Costa is intended as a standard for the trier of fact, not a standard of appellate review which would allow a court on appeal to substitute its judgment for that of the trial court in regard to fact finding. This becomes evident when read in conjunction with subsequent language in Costa:

'This court will not weigh the evidence but can only consider the evidence which is most favorable to the finding of the trial court. Further, this court will not disturb the judgment if there is any evidence of probative value substantiating the same. A great portion of the evidence dealt with whether or not an agreement was ever made by the appellees to reapportion the real estate. The trial court heard and saw the witnesses testify and observed their manner and conduct. Under such circumstances and the conflict of evidence, the law pertaining thereto as herein announced, it is not within the province of this court to substitute its finding and judgment for that of the trial court.

'In the case of Fuller v. Fuller, 1913, 52 Ind.App. 488, 100 N.E. 869, 870, the court said:

"As the evidence in this case consists largely of oral testimony, we are governed by the well-settled rule which forbids a court on appeal to weigh conflicting evidence. We can consider only the evidence favorable to the finding, and, if there is some evidence tending to support it in every essential, it must be permitted to stand, regardless of evidence to the contrary.'

'The rule is further announced which is wellknown to the bench and bar in the case of State Exchange Bank v. Paul, 1915, 58 Ind.App. 487, 108 N.E. 532, 533, as follows:

"By assignments of Error (Nos.) 3, 4 and 5 appellant asks this court to weigh the evidence. This is an action at law and the evidence is conflicting and principally oral. It has been repeatedly held by this and the Supreme Court, that the appellate tribunal will not weigh the evidence under such circumstances." 124 Ind.App. at 137--138, 115 N.E.2d at 520.

The language in the Court of Appeals holding indicates that its decision is based on the failure of Mary to prove the agreement between the parties. There, the court points to the 'sharply conflicting' testimony as being the defect in Mary's case. If this is a correct interpretation of the holding, the Court of Appeals is in error under the appellate review standard set forth in Costa. Since the evidence was conflicting, it was incumbent upon the Court of Appeals to uphold the trial court's finding of an agreement, Ardis' intent to keep the property and the resulting fraud.

However, the Court of Appeals gives the appearance of upholding the trial court's findings of fact when it states:

'In its findings of fact the trial court specifically found that Ardis formed an intent to obtain title to the property and keep the benefits for himself and that he made a promise to Mary to pay one-half of the value of the property in order to obtain title. The trial court found that these facts, all of which occurred prior to the making of a deed, constituted fraud on the part of Ardis.' 301 N.E.2d at 662.

The instructions to the trial court on remand are, therefore, not...