Simon v. Simon, No. 31393.

• Court: Supreme Court of Nebraska
• Writing for the Court: ROSE
• Citation: 141 Neb. 839,5 N.W.2d 140
• Decision Date: 24 July 1942
• Docket Number: No. 31393.
• Parties: SIMON et al. v. SIMON.

141 Neb. 839
5 N.W.2d 140

SIMON et al. v. SIMON.

No. 31393.

Supreme Court of Nebraska.

July 24, 1942.

Appeal from District Court, Richardson County; Falloon, Judge.

Suit for accounting by Carl V. Simon and others against Elsie Simon. From a judgment for plaintiffs, defendant appeals.

Affirmed.

Syllabus by the Court.

1. Contracting parties may create by parol a trust in personal property.

2. In a suit in equity to require an accounting for the remainder of a trust fund in possession of defendant, facts alleged in the petition and summarized in opinion held sufficient to state a cause of action in favor of plaintiffs.

3. Every person is a trustee who lawfully holds funds of others for the purposes of a trust.

4. Mutual promises and equal contributions of all contracting parties for a common fund for the benefit of all alike are sufficient consideration for an oral contract creating a trust.

5. Where a contract is fully performed by some of the contracting parties and partially performed by the others, it is not void under the statute of fraud because it is oral.

[5 N.W.2d 141]

John C. Mullen and Gerald M. Mullen, both of Omaha, for appellant.

J.H. Falloon, of Falls City, for appellees.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and YEAGER, JJ.

ROSE, Justice.

This is a suit in equity by Carl V. Simon, Leonard E. Simon and Clarence A. Simon, plaintiffs, against Elsie Simon, defendant, to require the latter to account for a fund of $4,263.84, to which plaintiffs and Harry F. Simon, deceased husband of defendant, contributed in equal amounts for mutual purposes. The contributors to the fund were four brothers who were sons of Frank Simon. They were his sole heirs. Defendant was the only heir of her deceased husband, Harry F. Simon.

The father and his sons, Harry F. Simon, Clarence A. Simon and Leonard E. Simon, had conducted at Falls City a wholesale grocery business in the name of the Falls City Mercantile Company.

The petition alleges that a fund of $4,263.84 was established by each brother contributing one-fourth of it; that it was put into the hands of Harry F. Simon; that the four brothers orally agreed the money in the fund should be used to pay any federal inheritance tax levied against them or any of them and to pay any charities, upon which they agree among themselves, until such time as by mutual agreement the fund or the remainder thereof should be divided equally among them; that Harry F. Simon, to whom the fund had been entrusted by his brothers, died January 10, 1940, while in possession of it or of the remainder thereof; that defendant, the widow and sole heir of Harry F. Simon, took possession of the fund or of the money remaining therein, not as executrix of her deceased husband's estate, nor did she account therefor to his estate as executrix, but took possession of the fund, or the remainder thereof, as an individual and retains the money as her own and refuses upon demand to account therefor; that defendant made payments under the original agreement of the four brothers to the extent of $543.02 and is indebted for the remainder, or for $3,720.82; that plaintiffs are entitled to three-fourths of this sum and the estate of their deceased brother to one-fourth. There is a prayer for an accounting and for a distribution.

The answer to the petition contains a general denial. Other defenses pleaded in detail may be summarized as follows: It is alleged that defendant...