Snouffer v. Peoples Trust & Sav. Co.

• Decision Date: 07 December 1965
• Docket Number: No. 20151,No. O,20151,O
• Citation: 212 N.E.2d 165,140 Ind.App. 491
• Parties: Richard I. SNOUFFER, Administrator with Will Annexed, of the Estate of Owen T. McCarty, Deceased, Appellant, v. PEOPLE TRUST AND SAVINGS COMPANY, as Trustee under the Will of Frank McCarty, Deceased, Appellee.
• Court: Indiana Appellate Court

Page 165

212 N.E.2d 165

140 Ind.App. 491

Richard I. SNOUFFER, Administrator with Will Annexed, of the Estate of Owen T. McCarty, Deceased, Appellant, v. PEOPLE TRUST AND SAVINGS COMPANY, as Trustee under the Will of Frank McCarty, Deceased, Appellee.

No. 20151.

Appellate Court of Indiana, Division No. One.

Dec. 7, 1965.

Rehearing Denied Jan. 17, 1966.

[140 INDAPP 493]

Joseph Christoff, Fort Wayne, for appellant.

Newkirk, Keane & Kowalczyke, John R. Leal and Jerry L. Coslow, Fort Wayne, for appellee.

WICKENS, Judge.

This cause is before us to test the ruling of the trial court sustaining appellee's demurrer to the second [140 INDAPP 494] amended complaint. Having refused to plead over, judgment was rendered against plaintiff-appellant.

Appellee's decedent, Frank McCarty, by will created a trust for the benefit of his son. He also provided that on the termination of the trust, the funds then remaining were to be used to erect and construct a mausoleum as a final resting place for his remains and the remains of others of his family. Appellant, the personal representative of the son's estate, brought suit seeking a resulting trust on the alleged invalidity of the testamentary provisions.

The issue is; did the second amended complaint state facts sufficient to constitute a cause of action requiring the trial court, in accordance with the prayer, to declare a resulting trust for plaintiff and to order remaining trust funds delivered to him and to also require an accounting from appellee? On that subject, of course, there is nothing in the record to show on what theory the trial court based its ruling.

If the action of the trial court is sustainable on any theory it must be affirmed. State ex rel. Anderson v. Brand, Trustee (1937), 214 Ind. 347, 357, 5 N.E.2d 531, 5 N.E.2d 913, 7 N.E.2d 777, 13 N.E.2d 955, 110 A.L.R. 778; 2 Ind.Law Encyc., Appeals, Sec. 472.

It is a general rule that the burden is on the one asserting a resulting trust against the holder of the legal title. All presumptions and inferences are against the one who seeks to establish such trust. Schwab v. Schwab (1959), 130 Ind.App. 108, 122, 162 N.E.2d 329.

In this appeal appellant is required to show that the second amended complaint was sufficient, not only as to the points in the memorandum, but also as to any ground not covered therein. Presumptions in favor of the rulings of the trial court require us to sustain the ruling if we find the complaint insufficient for any reason. Parker v. Hickman (1916), 61 Ind.App. 152, 158, 111 N.E. 649; Barnum v. Rallihan (1916), 63 Ind.App. 349, 356, 112 N.E. 561, (Transfer[140 INDAPP 495] denied); Nelson v. Reidelbach, Exr. (1918), 68 Ind.App. 19, 29, 119 N.E. 804.

The will of Frank McCarty, set out as an exhibit to plaintiff-appellant's complaint, first provided for payment of his debts and expenses and all taxes. The residue of his estate was bequeathed 'absolutely and in fee simple to' the trustee, in trust, upon certain recited terms and conditions. Detailed authority and directions to the trustee were set forth. The trustee was ordered, after the administration, to pay to testator's son (appellant's decedent) the income of the trust for and during the son's natural life.

It was then provided:

'2. This trust shall terminate upon the death of Owen T. McCarty and said Trustee shall use if necessary, the accrued income, if any, and such part of the corpus as may be required in order to give said Owen T. McCarty a decent and respectable burial. It is anticipated by me that the income from the trust property distributable as aforesaid to my said son will be ample and sufficient to take care of his ordinary requirements but if he should suffer some serious accident or be subjected to a prolonged illness and does not have the means to pay for medical, surgical, nursing and hospital care said Trustee if it finds the net income distributable to my said son insufficient for him to pay and discharge, and he has no other means so to do, such surgical, medical and hospitalization requirements, then and in such event Trustee is authorized to use such part of the corpus so as to provide my said son with the proper and necessary hospitalization, medical and surgical care and treatment.

'3. The property remaining upon the termination of this trust as aforesaid after the payment of funeral expenses and burial of my said son, shall be used by said Trustee to erect a mausoleum in Lindenwood Cemetery, Fort Wayne, Indiana, upon my family lot or a lot which I may, during my lifetime, procure for such purpose or a lot or space of ground the Trustee may purchase,--it being my intention if I do not select a place during my lifetime, to have the Trustee select a place within the cemetery on which to locate the mausoleum. As soon as the mausoleum has been erected and constructed said Trustee shall cause the bodies of my mother, Sarah McCarty, my uncle, John B. Welten, [140 INDAPP 496] my aunt, Carrie Welten, my son, Owen T. McCarty, and my body removed from their resting place and interred in this new mausoleum, which mausoleum shall bear the necessary inscription as to the bodies interred therein, the dates of birth, their death, etc. In the erection and construction of said mausoleum said Trustee shall first sell and dispose of all trust property so that the trust shall consist entirely of cash and said Trustee shall then determine the costs and expenses to be incurred in looking after the proper erection and construction of said mausoleum and shall also anticipate the cost and expense of removing bodies as aforesaid to said mausoleum and then determine the amount available for the erection and construction of such mausoleum. It is my intention and I so instruct said Trustee to use the funds available for the erection of a mausoleum,--the location, design and character of structure to be left entirely to the discretion of said Trustee. I have considered for a number of years the disposition of my estate. All that I possess has come to me as compensation and reward for services rendered and I have worked and saved since I was a small boy and I feel that I have a right to make whatever disposition I may care to make of my property. It is my purpose to use all of my property which may be available to build a final resting place for me and the persons herein designated and I want everyone who may read my will to know that the disposition I have made of my property is done by me alone and not upon the advice of any individual or institution.

'Item IV

'In the event my said son, Owen T. McCarty, should predecease me, then and in that event all the rest, residue and remainder of my property shall be reduced to cash by sale thereof by my Executor and the proceeds so derived therefrom and all other property constituting a part of my estate shall be used by my Executor to erect a mausoleum and said Executor to have the same powers as given the Trustee in the foregoing item of my will and so proceed with the erection of the mausoleum in the same manner as required of the Trustee in the foregoing item of my will.'

The complaint by recital shows: Frank McCarty died testate July 2, 1954; his will was probated and a copy of it was made part of the pleading; his estate was fully administered; he was survived by his son Owen T. McCarty and no spouse and no [140 INDAPP 497] other descendant; the plaintiff is the administrator with the will annexed of the estate of Owen T. McCarty who died May 22, 1959; that Peoples Trust and Savings Company is an Indiana corporation engaged in the general banking business in Fort Wayne, Indiana acting as corporate fiduciary and trustee under Item III of said will; that the persons named in said Item III, namely, Sarah McCarty, John B. Welten and Carrie Welten died prior to June 19, 1952; that a trust was established pursuant to said will and the defendant qualified, accepted and continues to act as trustee thereof; that the executor of the will delivered to the defendant all assets of the estate pursuant to the will; that on June 20, 1958 the will of Owen T. McCarty was made and a copy of it was made a part of the complaint; that the plaintiff qualified as administrator with the will annexed of the estate of Owen T. McCarty on September 27, 1960 and so continues to act; that no mausoleum site was acquired by or for Frank McCarty or the trust up the time the complaint was filed; and that the widow of Owen T. McCarty refused the defendant and all other persons the right or authority to remove the remains of Owen T. McCarty or Frank McCarty.

The theory of appellant's complaint is not couched in clear statements of fact. Appellee charges that the complaint is made up of conclusions of law. We will not pass on that charge because of the result reached and since it is true that '[t]he line of demarcation between 'ultimate facts' or 'conclusions of fact', and 'conclusions of law', is quite often shadowy and indistinct.' Oliver v. Coffman (1942), 112 Ind.App. 507, 514, 45 N.E.2d 351, 354.

The complaint charges and appellant has assigned and argued that the will creates a trust for the maintenance and repair of a mausoleum; that there is no way of ascertaining the beneficiaries capable of enforcing such trust; that the purpose of such trust is capricious and wasteful; that the corpus of such trust may not vest sooner than 21 years after [140 INDAPP 498] the death of Owen T. McCarty; that trustee's powers are too broad and indefinite and no length of time is set for the trustee to erect the mausoleum and that the erection of a mausoleum without funds for maintenance cannot be legally done and if done would constitute a common law nuisance.

Appellee questions the right of appellant to bring this action, and says that appellant's decedent accepted and received benefit from the testamentary trust and was thereby estopped from questioning its validity, the will having been probated and the estate closed....