Ross v. Thompson, 18743

• Decision Date: 06 December 1957
• Docket Number: No. 18743,18743
• Citation: 128 Ind.App. 89,146 N.E.2d 259
• Parties: Ora T. ROSS, Appellant, v. Alfred THOMPSON; State Bank of Rensselaer, Guardian of Emily Thompson; Floyd Meyers, Administrator De Bonis Non of the Estate of Delos Thompson, Deceased; Mary Ellen Fischer, Executrix of the Last Will and Testament of Lois Thompson Kirk, Deceased; Hugh A. Kirk; Mary Ellen Fischer; Hugh Tom Kirk; Katherine Teyber and Carolyn Nesbitt, Appellees.
• Court: Indiana Appellate Court

Page 259

146 N.E.2d 259

128 Ind.App. 89

Ora T. ROSS, Appellant, v. Alfred THOMPSON; State Bank of Rensselaer, Guardian of Emily Thompson; Floyd Meyers, Administrator De Bonis Non of the Estate of Delos Thompson, Deceased; Mary Ellen Fischer Executrix of the Last Will and Testament of Lois Thompson Kirk, Deceased; Hugh A. Kirk; Mary Ellen Fischer; Hugh Tom Kirk; Katherine Teyber and Carolyn Nesbitt, Appellees.

No. 18743.

Appellate Court of Indiana, In Banc.

Dec. 6, 1957.

Fraser & Isham, William S. Isham, James A. Gardner, Nolin & McConnell, Thomas R. McConnell, Fowler, for appellant.

Kenneth Call, Gary, Jesse W. McAtee, Riley, Reed, Murphy & McAtee, East Chicago, for Floyd Meyers, Administrator De Bonis Non of Estate of Delos Thompson, Deceased.

Timothy P. Galvin, Galvin, Galvin & Leeney, Hammond, for Alfred Thompson.

Cope J. Hanley, Rensselaer, for Mary Ellen Fischer, Executrix of Last Will and Testament of Lois Thompson Kirk, Deceased; Mary Ellen Fischer, Hugh Tom Kirk, Katherine Teyber, Carolyn Nesbitt.

Robert B. Wright, Rensselaer, for State Bank of Rensselaer, Guardian of Emily Thompson.

John E. Hopkins, Rensselaer, for Hugh A. Kirk.

COOPER, Judge.

This is an appeal from the Jasper Circuit Court wherein the appellant brought an action against the appellees to impress a trust upon certain real estate consisting of 314 acres of farm land in Jasper County, certain bank stock consisting of 135 2/3 shares in the State Bank of Rensselaer, and a bank deposit in the amount of $21,775.54, and also seeking an accounting in the said alleged trust.

The complaint of the appellant proceeds on the theory of an express trust as distinguished from a constructive or resulting trust.

The term 'express trust' signifies a trust created by the direct and positive acts of the parties as evidenced by some deed, will, or other instrument, wherein the language employed either expressly or by plain implication evinces an intention to create a trust. Holsapple v. Shrontz, 1917, 65 Ind.App. 390, 117 N.E. 547.

The record shows that after many unsuccessful motions and pleadings, each of the appellees filed an answer to the appellant's complaint.

The record further shows that several paragraphs of answers filed by defendants included answers denying the material allegations of the complaint; asserting the defenses of the statute of limitations; of laches; of estoppel; a defense of express termination of a trust by agreement and further asserting that the wrong form of an action had been commenced in that a claim should been filed against the estate of Delos Thompson who was alleged to have been a trustee under a written trust.

The appellant filed replies in denial of the affirmative matters of the several paragraphs of answer.

The record also shows that the matter was submitted to the court without the intervention of a jury and at the conclusion of the plaintiff's evidence, the defendants, each and severally, filed motions for the court to enter a finding and judgment for the said defendants for the reason '* * * that the evidence introduced by the plaintiff is not sufficient to sustain the allegations of the plaintiff's complaint * * *' and thereafter the court made the following ruling and final judgment:

'Come again the parties as before, and the argument on the motions of the defendants for the Court to find for said defendants, is now resumed, and the Court having heard the evidence and being duly advised in the premises now sustains said motions and finds for the defendants and each of them, and the Court now enters judgment upon said finding.

'It is therefore considered, adjudged and decreed by the Court that the plaintiff in this cause take nothing by her complaint, and that the defendants and each of them recover of and from the plaintiff their costs and charges laid out and expended in this cause, and taxed at $_____.

'All of which is ordered and decreed this 10 day of March, 1955.'

Thereafter the appellant filed his motion for a new trial on each of the following grounds:

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

'2. Errors of law occurring at the trial most specifically designated as follows:

'(a) The Court erred in sustaining motion for Finding for defendant Floyd Meyers, Administrator de bonis non of the estate of Delos Thompson, deceased.

'(b) The Court erred in sustaining the motion of the defendants Alfred Thompson; State Bank of Rensselaer, Guardian of Emily Thompson; Mary Ellen Fischer, Executrix of the Last Will and Testament of Lois Thompson Kirk, deceased; Hugh A. Kirk; Mary Ellen Fischer; Hugh Tom Kirk; Katherine Teyber; and Caroline Nesbitt for finding for said defendants at conclusion of Plaintiff's evidence.

'(c) The Court erred in excluding each of the following exhibits offered by plaintiff, to-wit:

'Plaintiff's Exhibit No. 6--Statement of Assets and Liabilities, January 1, 1901.

'Plaintiff's Exhibit No. 7--Statement, January 1, 1903.

'Plaintiff's Exhibit No. 8--Invoice, January 1, 1898.

'Plaintiff's Exhibit No. 9--Statement, January 1, 1905.

'Plaintiff's Exhibit No. 10--Statement of Assets & Liabilities.

'Plaintiff's Exhibit No. 11--Statement of Account, January 1, 1904.

'Plaintiff's Exhibit No. 12--Invoice, January 1, 1897.

'Plaintiff's exhibit No. 13--Farm Invoice, January 1, 1914.

'Plaintiff's Exhibit No. 14--Statement, December 31, 1933.

'Plaintiff's Exhibit No. 15--Farm Invoice, January 1, 1915.

'Plaintiff's Exhibit No. 16--Farm Invoice, January 1, 1917.

'Plaintiff's Exhibit No. 17--Farm Invoice, January 1, 1918.

'Plaintiff's Exhibit No. 18--Farm Invoice, January 1, 1921.

'Plaintiff's Exhibit No. 25--Schedule of all property for Inheritance Tax appraisal in estate of Delos Thompson, deceased.

'Plaintiff's Exhibit No. 26--Order determining value of Estate and amount of tax in Estate of Delos Thompson, deceased.

'Plaintiff's Exhibit No. 136--Accounting statement as to status of trust February 2, 1951.

'Plaintiff's Exhibit No. 137--Statement as of January 31, 1950.

'Plaintiff's Exhibit No. 138--Letter and Statement to E. M. LaRue from Paul W. Lewis.

'Wherefore, the Plaintiff prays the Court for a new trial of said cause.'

The sole assignment of error before us is the overruling of the appellant's motion for a new trial.

Specification C of the second ground of the appellant's motion for a new trial (which we will dispose of first) is, 'The court erred in excluding each of the following exhibits offered by the plaintiff to-wit: and thereafter mentions eighteen different exhibits. This claimed error (and there was error in refusing to admit certain exhibits offered) is not properly before us for the reason that the motion for a new trial does not set out the exhibits or their substance. A motion for a new trial must set out the exhibits or the substance thereof in order that the court can determine whether or not harmful error exists without searching the record. Gray v. Hawke Motor Sales, Inc., 1953, 124 Ind.App. 74, 77, 112 N.E.2d 459, and authorities cited; Greek v. Seward, 1943, 222 Ind. 211, 213, 51 N.E.2d 3, and authorities cited; Flanagan, Wiltrout & Hamilton, Indiana Trial and Appellate Practice, § 1812, Comment 8 (1956 Supplement) and § 1977, and authorities cited.

The other ground in the appellant's motion for a new trial is based upon the assignment that the decision of the court is contrary to law and that the court erred in sustaining a motion for a finding for and on behalf of the respective defendants. Thus, we are called upon to consider whether or not there is any evidence to sustain the allegations of the appellant's complaint. In view of the court's announced finding, in sustaining said motion, it seemingly becomes prudent to consider the effect of said motion and the principles governing its treatment.

Our court, in the case of Garrett v. Hoctel's Estate, 1957, Ind.App., 142 N.E.2d 449, 453, said:

'Primarily, it may be said that it is tested by the same rules of law as is a request for a peremptory instruction to the jury. Abernathy v. McCoy, 1926, 91 Ind.App. 574, 600, Points 16-18, 154 N.E. 682. In Hill v. Rogers, 1951, 121 Ind.App. 708, 712, (Transfer denied) 99 N.E.2d 270, 272, it is said that in ruling upon a motion for judgment at the conclusion of plaintiff's case, the court:

"may consider only the evidence and the reasonable inferences which may be drawn therefrom most favorable to the plaintiff. If there is any evidence from which it may by reasonably inferred the plaintiff was entitled to relief, it is error to sustain such motion.'

'Further, we may state, in determining upon such motion, that the court must not weigh the evidence and it must exclude all conflicting evidence that is favorable to the defendant. National Union Fire Insurance Co. v. Minas Furniture Co., 1927, 86 Ind.App. 358, 362, 158 N.E. 248.'

The law is clear that upon an appeal from the judgment entered in a trial for the movant at the close of the adverse party's evidence, this court will construe the evidence in the manner most favorable to the adverse party. Folsom v. Callen, 1956, 126 Ind.App. 201, 131 N.E.2d 328, 330.

With the aforesaid basic principles of law in mind, and, in reviewing the evidence in the record before us without reciting all of the same we believe the evidence introduced by the appellant was sufficient to establish the following pertinent facts: (1) that an express trust in writing as of 1896 was created without limit as to time and that Delos Thompson accepted the trust and engaged upon its performance; (2) that pursuant to the powers granted him as such trustee, he from time to time converted the original assets, both real and personal, and acquired properties and assets in appropriate manner for the use and benefit of the trust and the cestui que trustents. The record discloses no final disposition of the trust by the trustee.

By a stipulation of the parties as shown by the record herein, it is apparent that Florence T. Sears (one of the...