Repp v. Lesher

• Decision Date: 08 October 1901
• Citation: 27 Ind.App. 360,61 N.E. 609
• Parties: REPP et al. v. LESHER et al.
• Court: Indiana Appellate Court

27 Ind.App. 360

61 N.E. 609

REPP et al.

v.LESHER et al.

Appellate Court of Indiana, Division No. 1.

Oct. 8, 1901.

Appeal from circuit court, Miami county; J. T. Cox, Judge.

Action by Sarah A. Repp and others against Sarah K. Lesher and others. From a judgment in favor of defendants, complainants appeal. Affirmed.

Farrar & Morris, for appellants. D. E. Rhodes and Bailey & Cole, for appellees.

ROBINSON, J.

Action by appellants to enforce a trust. Complaint in three paragraphs. Appellee Sarah K. Lesher answered in eight paragraphs. Appellees Catharine and David Lesher answered in eight paragraphs. The appellees above named answered the complaint jointly in three paragraphs. Special finding of facts, with conclusions of law, and judgment in appellees' favor. Errors assigned and discussed are that appellant's demurrer to the fourth paragraph of separate answer of Sarah K. Lesher to the first paragraph of complaint, and the demurrer to the second paragraph of joint answer of Sarah K., Catharine, and David Lesher, were erroneously overruled; that appellants' motion for a new trial was improperly overruled; and that the conclusions of law are incorrect.

The first paragraph of complaint avers, in substance, that on the 27th day of February, 1865, John Lesher, then a widower, held the legal title to 150 acres of land, described, which he had previously paid for with moneys belonging to his wife, mother of appellants, and had taken the conveyance in his own name. On that date John Lesher and appellee Sarah K. Lesher (then the widow of Charles Kessinger), in contemplation of marriage, entered into an antenuptial agreement, each executing and delivering to the other a contract in writing that, in the event of their marriage, the property each then held should be and remain the property of each, respectively, free from any claim by the other; that the parties were married, and John Lesher sold 50 acres of the land to pay debts, and afterwards sold 100 acres by agreement between the husband and wife, and part of the money was paid to Sarah K. Lesher, to be held by her in trust for John Lesher's children; that afterwards Sarah K. Lesher purchased certain described lands, and paid thereon the trust funds so held by her, and took the title to part of it in her own name, and the rest in the name of appellee Catharine Lesher, with knowledge of the trust; and that they are still in possession of the land so purchased,-asking an accounting, for judgment, and conveyance of the land. The second paragraph of complaint pleads the execution of the antenuptial contract in February, 1865, by each executing to the other a separate written agreement, signed and acknowledged; that by his written agreement “John Lesher settled upon his children by his former wife all his real and personal estate, to be taken by them at his death,” and by her written agreement Sarah released all her interest therein. A copy of her agreement is made an exhibit. “That said agreement executed by John Lesher has been lost, misplaced, or destroyed, and a perfect copy of it cannot be given.” The pleading further avers that the parties were married; that at the time of the contract and marriage John Lesher owned 150 acres of land; that he sold 100 acres; that Sarah K. Lesher obtained possession of a large amount of the money and notes for this land, and invested the same in the lands now in question in her own name and in the name of Catharine Lesher; that neither Sarah K. nor Catharine Lesher furnished the money, or any part thereof, to pay for these lands, but all of the purchase money was derived from the sale of the 100 acres of land that John Lesher had by his antenuptial contract settled upon his children by his former wife; that such investment was without the consent of such children (appellants); that no consideration passed for such money or notes, but that the same belonged to and was the property of John Lesher so long as he lived, and after his death, in 1894, was the property of these appellants. The third paragraph avers that in 1875 Sarah K. Lesher agreed with John Lesher to hold certain moneys then held by and coming to him for him during his life, and at his death pay the same to his children; that she received the money, and invested it in the land in question, and took the title in her own name and in the name of Catharine Lesher; that John Lesher died in 1894.

Objection is first made to the fourth paragraph of answer to the first paragraph of complaint. This paragraph of complaint seems to proceed upon the theory that appellants' rights grow out of the trust averred to have been created when John Lesher purchased the 150 acres of land with his wife's money. In the brief it is said that this paragraph of answer is not good, because “it neither denies nor avoids the trust averred in said paragraph of complaint to have been created by John Lesher by taking title in himself to the lands he purchased with the money of appellants' mother, his first wife, which trust is the foundation of the cause of action alleged therein,” and “that the trustee's placing of the trust funds in Sarah K. Lesher's hands, to be held by her in trust, are only incidents to the original trust.” The averments of the complaint by which it is sought to show the creation of this trust are that “on said 27th day of February, 1865, said John Lesher held the legal title to the east 150 acres of land lying,” etc. (describing the land), “which he purchased [prior to that time, to wit, during the lifetime of his then deceased wife] with, and paid for the same with, moneys belonging to said former wife; but he, said John Lesher, took the deed of conveyance for the same in his own name, although said lands really belonged to his said first wife.” These averments are not sufficient to establish a trust in favor of the former wife. It is simply averred that the husband paid the wife's money for the land, and took the title in himself. It is not shown that the conveyance to him was without the wife's consent, or that it was fraudulently made, or that it was in violation of any trust, or...