Appeal from circuit court, Clinton county; J. V. Kent, Judge.
MONKS, C. J.
This action was brought by appellants against appellees to enforce a trust in real estate. Appellees' demurrer for want of facts was sustained to the fourth and fifth paragraphs of the complaint, the other paragraphs having been withdrawn; and, appellants refusing to plead further, judgment was rendered against them. The action of the court in sustaining said demurrer is called in question by the assignment of errors. It is alleged in the fourth paragraph: That “Elizabeth A. Rodgers, the sister of appellants, was the owner of real estate in Clinton county, Indiana [describing it], of the value of more than six thousand dollars. That she also owned a large amount of real estate and personal property in Boone county, Indiana, of the value of more than ten thousand dollars. That appellants, brothers of said Elizabeth A. Rodgers, were and are of very moderate circumstances, and that appellant Thomas B. Ransdel was and is very poor financially, and a cripple, having lost both an arm and a leg before the marriage of said Elizabeth Rodgers to said Willis E. Moore. That in 1876 said Elizabeth A. Rodgers became engaged to marry one Willis E. Moore, who was possessed of an estate of very limited value, to wit, of the value of not exceeding five hundred dollars; that the said Elizabeth A. Rodgers was a widow without children or their descendants living, and both her father and mother were dead, and she greatly desired that a large portion of her property should, at her death, vest in appellants, her brothers, and especially that they should become the owners in fee simple of her real estate in Clinton county, Indiana, which fact she made known to said Willis E. Moore before their marriage, and it was agreed between them that said Elizabeth A. should, either by will or deed, vest the title to said Clinton county real estate in her said brothers. That after said agreement said Elizabeth A. and the said Willis E. Moore were, in the year 1878, lawfully married. That no children were born of such marriage, but that said Willis E. Moore had three children by a previous marriage, to wit, these appellees. That in 1894 said Elizabeth became sick, and recognized the fact that she could not recover from said sickness, and, knowing and believing that she would certainly die, requested her husband, Willis E. Moore, to procure an attorney or other competent person to make and prepare a deed or will for her signature and execution, to carry out her purpose and wish to vest the title to said real estate in appellants. That she was of sound mind and memory, but physically unable to leave the house. That her husband promised her he would do so, but failed and neglected to secure a person to draft such deed or will as requested by her. That she constantly grew worse, and shortly afterwards, in 1894, knowing and believing that she would certainly die, she called her husband, Willis E. Moore, to her bedside, and as a last request asked him that some person competent to draft a deed or will be sent for, in order that she might carry out her desire of vesting the title to said real estate in appellants, but that said Willis E. Moore again postponed her, telling her that she was then unable to make a will, but to rely on him, and that he would see that her brothers, the appellants, should have said real estate, in case she should die without having made a will or conveyed the same to them. That he would, in that event, receive the title to said real estate in trust for them, and see that the title thereto was properly vested in them. That at the time of making said several requests the said Elizabeth A. Moore was of sound mind, able and competent to make and execute a deed or will,-a fact well known to said Willis E. Moore; but said Elizabeth A. Moore, having full faith and unbounded confidence in her said husband, acquiesced in said statement of her husband, and relied upon him, in case of her death, to receive and hold said real estate in trust for the use and benefit of appellants, and that they should become the owners thereof in fee simple. That said Elizabeth A. constantly grew worse, and a short time thereafter died, without making a will or deed, and without in any way conveying said real estate to appellants, except as hereinbefore set forth. That soon after her death the said Willis E. Moore, with the intention of carrying out the wishes of his deceased wife, and for the purpose of manifesting the trust imposed upon him by her, called the three brothers together for the purpose of vesting the title to said real estate in them, by executing to them a deed or deeds of conveyance. That appellant Walter H. Ransdel at that time resided in the state of Missouri, and the other brothers resided in different parts of the state of Indiana. That in response to said request said appellants went from their several homes to Thorntown, Indiana, and met the said Willis E. Moore, who thereupon proposed, in accordance with said trust, to execute a deed or deeds to appellants, conveying said real estate to them, but the said Walter H. Ransdel, being a resident of Missouri, expressed a desire that said Willis E. Moore, instead of executing a deed for said real estate to appellants, should take the charge and management thereof, and continue to hold the same in trust for them, and as early as possible find a purchaser for and sell the same, and divide the proceeds between appellants. That appellants consented to said arrangement, and said Willis E. Moore, in order to evidence said trust and arrangement, prepared and delivered to appellants a written memorandum in the words and figures following, to wit: ‘Know all men by these presents, that we, the undersigned names, being brothers of Elizabeth A. Moore, deceased, are willing, when the farm is sold, and all the money furnished each of them by Willis E. Moore, her surviving husband, and all other expenses are taken from the proceeds of the sale of the land, that the remainder be equally divided among the brothers, while Walter H. Ransdel agrees that Thomas and William shall each have one hundred dollars of his interest when paid. The sale and division, together with the management of the land, to be done by said Willis E. Moore. This 11th day of April, 1894. Walter H. Ransdel. Thomas B. Ransdel. William M. Ransdel.’ That the farm land referred to in said written memorandum was and is the real estate above described in Clinton county, Indiana, and the said Walter H., Thomas B., and William M. Ransdel mentioned in said written memorandum were and are the appellants. That immediately after the said written memorandum of agreement had been so prepared, executed, and delivered to the appellants, the said Willis E. Moore took possession of said real estate for the use and benefit of appellants, and proceeded to execute said trust, by trying to sell said real estate for the use of appellants. That soon after he took possession of said real estate as such trustee, not being able to find a purchaser therefor, he applied to the Union Trust Company of Indianapolis, Indiana, for a loan of fifteen hundred dollars on a portion of said real estate, for use and benefit of appellants, which sum he received in cash from said trust company about February 7, 1895, executing in his own name a mortgage to said trust company on said real estate. That on or about April 16, 1896, he applied to one Mary Douglass for a loan of five hundred dollars, which sum he also received in cash for the use and benefit of appellants, and executed to her a mortgage on a portion of said real estate to secure the same. Soon after he so received the money, he, as such trustee, made a partial distribution thereof among appellants. The exact amount paid to each appellant they are now unable to state. That after the death of Elizabeth A. Moore the said Willis E. Moore at all times admitted said trust. That soon after receiving the money from said trust company as aforesaid, he sent to appellant Walter H. Ransdel a check for three hundred dollars thereof, and at the same time wrote a letter to him, in which he admitted said trust, which letter is in the words and figures following, to wit: ‘Thorntown, Ind., March 4th, 1895. Mr. W. H. Ransdel, North Fork, Mo.-Dear Brother: I received your letter of the 1st, and was glad that you and yours were well, as usual; and we have a man here now soliciting aid for the Nebraska sufferers, and it seems a deplorable affair, but we hope for better things in the next crop. Enclosed please find check for three hundred dollars. I failed to make a sale of the land on account of the condition of things, so I got some abstracters to look the matter up completely, and have got the title in shape that an Eastern company made a loan on it for fifteen hundred dollars, and the agreement reads, after dividing the proceeds equally between you three brothers, you give Thomas and William each one hundred dollars of your third, and on this amount they each get six hundred and you three, and what you and they get in the future will be equally divided between you and them. I am going to make the farm and my other income pay the loan off as fast as possible, and if I meet with a chance to sell before it is all paid the purchaser will assume the balance as part payment. I have rented the farm for one-half of everything raised on it, delivered at the railroad station there, and he fixes the fences, and cleans out the bushes off the farm. William has moved to Thorntown, and will farm 5 acres of land I have south of town with one...
