Thomas v. Merry

• Decision Date: 20 January 1888
• Docket Number: 13,435
• Citation: 15 N.E. 244,113 Ind. 83
• Parties: Thomas, Administrator, v. Merry
• Court: Indiana Supreme Court

15 N.E. 244

113 Ind. 83

Thomas, Administrator, v. Merry

No. 13,435

Supreme Court of Indiana

January 20, 1888

From the Vigo Circuit Court.

The judgment is affirmed, with costs.

S. B Davis, S. C. Davis and L. D. Thomas, for appellant.

S. W Curtis and G. A. Knight, for appellee.

OPINION

Howk, J.

Appellee 's claim or complaint against the estate of Samuel Merry deceased, whereof appellant, Thomas, was administrator, contained two paragraphs. Issue was joined thereon by appellant's answer in general denial, and the trial thereof by the court resulted in a finding for appellee in the sum of $ 2,100, and over appellant's motion for a new trial the court rendered judgment on its finding.

Errors are assigned here by appellant, the defendant below, which call in question the overruling of his demurrer to each paragraph of appellee's claim or complaint, and the overruling of his motion for a new trial. We will consider these errors in the order of their statement, and decide the questions thereby presented.

In the first paragraph of his claim or complaint the appellee alleged that the estate of Samuel Merry, deceased, appellant's testate, was indebted to appellee in the sum of $ 1,400, and interest thereon, amounting to $ 1,200; that, on August 27th, 1860, appellee conveyed to said Samuel Merry, since deceased, lots numbered 31 and 32, in Chauncey Rose's subdivision of 84.65 acres off the north end of the northwest quarter of section 22, township 12 north, of range 9 west, in Vigo county, Indiana; that such real estate was so conveyed to said Samuel Merry at and for the consideration of $ 5,000, to be held by him in trust for appellee; that afterwards, by an agreement by and between appellee and said Samuel Merry, since deceased, the said Samuel conveyed such real estate to one Adam C. Mattox at and for the price of $ 2,400, and received such sum therefor from said Mattox, and kept and retained the same under such agreement for the use and benefit of appellee, and that by such agreement the said Samuel was to furnish appellee with a home in the town of Brazil; that, on the day of -----, 187-, said Samuel Merry, since deceased, purchased with part of the sum of money last aforesaid lot No. 12 in Hendrix's fourth addition to the town of Brazil at and for the price of $ 800, and, also, a wagon and team at and for the sum of $ 200; that afterwards said Samuel Merry, since deceased, purchased for appellee a suit of clothes for the sum of $ 18, for which sum appellee had given credit to such decedent's estate, and that said Samuel Merry, since deceased, had the use and benefit of said trust fund of $ 2,400 since March 4th, 1871, with the exceptions above set forth, amounting in the aggregate to the sum of $ 1,018. Wherefore, etc.

In the second paragraph of his claim or complaint herein, after stating the indebtedness to him of such decedent's estate, the appellee alleged that, on the 25th day of June, 1885, in an action in the Clay Circuit Court, of Clay county, Indiana, wherein appellee herein was plaintiff, and the appellant herein and those in privity with him, to wit, the heirs at law of said Samuel Merry, deceased, were defendants, the identical matters set forth herein, so far as the trust and the money had and received were involved, were, upon issue joined, tried; that in said action the issue was whether or not a certain house and lot in Brazil, in Clay county, had been purchased by said Samuel Merry, deceased, with funds (to recover the balance of which this suit was brought) belonging to appellee, and the title thereto taken in such decedent's name; that, upon the trial of said issue, the same was found and declared in favor of appellee, and said Clay Circuit Court adjudged that the funds with which said decedent paid for said house, which appellee alleged was a part of the funds for which he sued in this action, were held by said decedent in trust for appellee. Wherefore, etc.

Each paragraph of appellee's claim or complaint herein was demurred to by appellant, Thomas, solely upon the ground that it did not state facts sufficient to constitute a cause of action. These demurrers were severally overruled by the trial court, and these rulings constitute the first errors of which appellant's counsel complain here in argument.

In section 2310, R. S. 1881, in force since September 19th, 1881, it is provided that the holder of any claim against a decedent's estate "shall file a succinct and definite statement thereof in the office of the clerk of the court in which the estate is pending."

In construing this provision and similar provisions in previous statutes regulating the settlement of decedents' estates, it has been held by this court that, while the holder of a claim against a decedent's estate is not required to file a formal complaint against the estate, under the ordinary rules of pleading in civil actions, yet the "succinct and definite statement" of his claim, which the statute requires him to file in the clerk's office of the proper court, must contain all the facts necessary to constitute prima facie a cause of action in his favor, due, or to become due, from such estate. Huston v. First Nat'l Bank, 85 Ind. 21; Windell v. Hudson, 102 Ind. 521, 2 N.E. 303; Walker v. Heller, 104 Ind. 327, 3 N.E. 114; Culver v. Yundt, 112 Ind. 401, 14 N.E. 91.

Appellant's learned counsel vigorously contend that the first paragraph of appellee's claim was clearly bad on demurrer, because, as counsel claim, it rests upon and seeks to enforce an alleged parol trust in real estate. If counsel were right in their construction of the first paragraph of complaint, and of the relief sought thereby, they would be right also, no doubt, in claiming that the paragraph was bad and that the demurrer thereto ought to have been sustained; for it is settled by our decisions that an express trust in real estate can not be created by parol. Mescall v. Tully, 91 Ind. 96, and authorities there cited.

We are of opinion, however, that appellant's counsel wholly misapprehend the force and effect of the facts stated by appellee in the first paragraph of his claim herein. It is true that the claimant averred, almost at the outset of the first paragraph of his claim, that, on August 27th, 1860, he sold and conveyed to appellant's testate, Samuel Merry, since deceased, certain described real estate in Vigo county, for the consideration of $ 5,000, to be held by said Samuel Merry in trust for such claimant. But we regard this averment to be simply intended as an introduction to, and an explanation of, the other facts stated by appellee in the first paragraph of his claim; and that such averment was so intended, we think, is clearly shown by such facts. Certainly, the claimant did not base his claim herein on the alleged parol trust in such real estate, nor did he seek to enforce such trust in this suit.

Appellee's claim against the estate of appellant's testate, as stated in the first paragraph thereof, was based upon the agreement made long afterwards by and between him and said Samuel Merry, since deceased, to the effect that such real estate, so conveyed as aforesaid by the claimant herein to said Samuel Merry, should be sold and conveyed to one Mattox for the sum of $ 2,400, and that said Samuel Merry should receive from said Mattox the proceeds of such sale and conveyance of such real estate; and the claimant averred that, under this last agreement, such real estate was sold and conveyed to said Mattox for the price aforesaid, and that said Samuel Merry received the proceeds of such sale from said Mattox and retained the same, under such agreement, for the use and benefit of such claimant. It is clear, we think, that the trust arising under this last agreement, in favor of the claimant herein, was a trust relating only to personal estate, namely, the moneys so received from said Mattox by said Samuel Merry, and retained and held by him in trust for such claimant. It is settled by our decisions, that a trust in personal property or money may be created by parol. Hon v. Hon, 70 Ind. 135; Hunt v. Elliott, 80 Ind. 245; Mohn v. Mohn, 112 Ind. 285, 13 N.E. 859.

In the case last cited, the averments of the second paragraph of the complaint, as stated in the opinion of the court, were substantially the same as those of the first paragraph of the claim in the case in hand. In the case cited, it was held, in effect, that where lands had been conveyed to the grantee upon his parol agreement to hold the same in trust for the grantor, although such agreement was void, yet such an equitable obligation would arise therefrom as...