Schrenker v. Grimshaw, No. 18466

• Docket Nº: No. 18466
• Citation: 124 Ind.App. 493, 119 N.E.2d 432
• Case Date: May 17, 1954
• Court: Court of Appeals of Indiana

Page 432

119 N.E.2d 432 124 Ind.App. 493 SCHRENKER
v.
GRIMSHAW et al. No. 18466. Appellate Court of Indiana, In Banc. May 17, 1954.

[124 Ind.App. 495]

Page 433

Paul E. Schrenker, John D. Staggenburg, Anderson, George Milford, Marion, for appellant.

Campbell, Gemmill, Browne, Ewer & Torrance, Marion, John O. Campbell, Richard E. Sisson, Marion, of counsel, for appellee.

CRUMPACKER, Chief Judge.

This suit was commenced by Olive Pontzious who died before trial and the appellant, as her personal representative, was substituted in her stead. It has for its purpose the cancellation of the following instrument duly entered in the deed records of Delaware County, Indiana:

'This Indenture Witnesseth, that Olive Pontzious, sole and unmarried of Delaware County, in the State of Indiana convey and warrant to Edith V. Grimshaw, sole and unmarried of Grant County, in the State of Indiana, for an in [124 Ind.App. 496] consideration of love, affection and services formerly rendered the

Page 434

receipt whereof is hereby acknowledged, the following described real estate in Delaware County, in the State of Indiana, to-wit:

'Forty-three and one-half (43 1/2) feet of equal width off of the entire South end of Lot Number four (4) in Block Number six (6) in addition to Muncietown, now City of Muncie.

'The Grantor herein holds and maintains in herself a life estate in the above described real estate and this conveyance in fee simple is made subject to the life estate held by the Grantor herein.

'In Witness Whereof, The said Olive Pontzious sole and unmarried has hereunto set her hand and seal this 21st day of October, 1949.

'(Seal) Olive Pontzious (Seal)'

(Here follows notary's jurat.)

On March 3, 1950, Olive Pontzious disaffirmed said deed by formal notice to the grantee, Edith Grimshaw, in which she demanded a reconveyance of the real estate involved to her. As such reconveyance was not forthcoming she sought relief in equity by a complaint in two paragraphs in the first of which she charges that she executed said deed in consideration of a collateral oral contract between herself and the grantee, Edith Grimshaw, whereby said Grimshaw agreed to nurse her, support and comfort her, be her companion and, in general, take care of her for the remainder of her life and pay her funeral expenses upon her death. She further charges a breach of such contract by Grimshaw in many particulars and asks that said deed be set aside and held for nought. The second paragraph of complaint proceeds upon the theory that she executed said deed because of undue influence exercised over her by the grantee, Grimshaw, and prays the same relief.

[124 Ind.App. 497] It appears that after Olive Pontzious commenced this suit she made a will in which the real estate here involved was devised to the appellee Lavon Hiatt and after Olive Pontzious died the appellant filed an amended complaint naming said Hiatt as a party defendant to answer to her interests and alleging the insolvency of the Pontzious estate and the necessity of using the real estate here involved to make assets to pay debts. Otherwise the material allegations of the amended complaint are the same as those set out in the original complaint filed by Olive Pontzious. The record discloses no appearance or answer by the defendant Hiatt nor was she defaulted for any reason. The defendant Grimshaw joined issue by an answer agreeable to Rule 1-3 and, on change of venue, the case was tried to the Grant Superior Court and resulted in a finding and judgment for the appellee Grimshaw from which the executor Schrenker appeals.

We are asked to reverse because the appellant considers that the court erred in overruling his motion for a new trial which sets out four specifications which, because of necessary comment, we quote verbatim: '(1) The decision of the court is not sustained by sufficient evidence; (2) the decision of the court is contrary to law; (3) the court erred in sustaining all objections to the questions asked in the introduction of the evidence of the decedent, Olive Pontzious, by virtue of her deposition; (4) the court committed the following irregularity, to-wit: by announcing in open court that the funeral bills, while not a legal obligation of the defendant Grimshaw, in view of his finding for her, became her moral obligation, and he expected her to pay the funeral bills of the decedent Olive Pontzious or he would sustain a motion for a new trial.'

The decision of the court being negative as to the appellant, upon whom the burden of establishing his [124 Ind.App. 498] case rested, specification (1) presents no question. Cart v. Fleming, 1950, 119 Ind.App. 690, 88 N.E.2d 577; Wadler v. Mogul Rubber Corporation, 1945, 116 Ind.App. 152, 61...