Vance v. Grow

• Decision Date: 28 April 1933
• Docket Number: No. 14588.,14588.
• Citation: 185 N.E. 335
• Parties: VANCE et al. v. GROW et al.
• Court: Indiana Appellate Court

185 N.E. 335

VANCE et al.

v.GROW et al.^*

No. 14588.

Appellate Court of Indiana, in Banc.

April 28, 1933.

Appeal from Marshall Circuit Court; Albert B. Chipman, Judge.

Action by Emma Vance and others against Helen Grow and Charles Wise, executor of the estate of Sarah Shultz, deceased. From an adverse judgment, plaintiffs appeal.

Reversed with directions.Gochenour & Graham and Brubaker & Rockhill, all of Warsaw, for appellants.

Kitch & Kitch, of Plymouth, and H. V. Lehman and Allen Widaman, both of Warsaw, for appellees.

KIME, Presiding Judge.

This was an action begun by appellants' complaint in two paragraphs, to which demurrers were filed and overruled, with general denials closing the issues. Special findings were rendered on request with two conclusions of law thereon. The error properly presented is error in each of the conclusions of law. The conclusions were: (1) “The court now concludes the law is with the defendants” (appellees), and (2) “that the plaintiffs (appellants) should take nothing in this suit, and that the defendants should recover their costs herein.”

The special findings disclose that: Sarah Shultz, a short time (8 months) before her death on July 8, 1930, at the age of 69 years, made a will leaving all her property to appellee Helen Grow, not related in any way to her, but who had lived with Sarah Shultz since she was 5 years old, except 3 years from 1926 to 1929; that there were four living brothers and sisters of Sarah Shultz (the appellants here); that Helen Grow returned to the Shultz home in September of 1929; that the will was made November 9, 1929; that on June 24, 1930, about 1 o'clock in the morning, Sarah Shultz, mortally ill with cancer, said she was not ready to die and requested that the appellants and Helen Grow be called to her bedside; that they were summoned and came from their respective houses and with Helen Grow and Ruby Rhoades gathered around her bedside. Then, in the words of the findings:

“*** The said Sarah Shultz then requested every person to leave the room except the defendant Helen Grow and the plaintiffs Emma Vance, Melissa Snoke, Calvin Thompson and Samuel Thompson. All persons in said room except the above-named five persons then left and went into an adjoining room, the door between said two rooms being left open.”

“8. The said Sarah Shultz then stated to Helen Grow, Emma Vance, Melissa Snoke, Calvin Thompson and Samuel Thompson that she had made a will and that she had never told any of them of it; the said Sarah Shultz then stated that she wanted the said Helen Grow to have the home farm upon which she (Sarah Shultz) lived; that she wanted the said Helen Grow to have all of the household goods and furniture and fixtures in the house on said farm; that she wanted the said Helen Grow to have the Dodge automobile and all of the live stock, implements and personal property on and about said farm; that she wanted enough money taken from her other property to paint the buildings and repair the fences on said farm. That out of her other property she wanted all of her debts and funeral expenses paid; that she wanted her nephews, Perry Metzger, Clarence Metzger, and Sherman Metzger, each to have the sum of two hundred dollars. That she wanted the forty acres of land which she owned, other than the said home farm, together with all the remainder, of her property, including her moneys and bonds, to go to the plaintiffs in this cause, Emma Vance, Melissa Snoke, Calvin Thompson and Samuel Thompson. That the plaintiff Calvin Thompson repeated the above statements, made by the said Sarah Shultz as to the disposition of her property, and asked the said Sarah Shultz whether that was correct, and she said it was. The said Sarah Shultz then asked the defendant Helen Grow, who stood at the head of her bed, but not in a position where the said Sarah Shultz could see her, whether she would do as she (Sarah Shultz) had requested, to which the defendant Helen Grow replied she would.”

“9. That later in the morning of said June 24, 1930, the defendant Charles Wise came to the home of Sarah Shultz and stated to the plaintiffs that about a week before that date the said Sarah Shultz stated to him that she desired to change her will, and that she had sent the said Wise to the person who had its custody for the purpose of obtaining said will, and that said custodian refused to let him have it, and said the will was just as it should be. That he was unable to obtain said will. That the said Wise further said to the plaintiffs that the said Sarah Shultz wanted him, the said Wise, to paint the buildingsand repair the fences on said home farm, but that he could not do that.”

“10. The Court further finds that the defendant Helen Grow has refused to carry out the request made by the said Sarah Shultz, and is claiming to be the owner of all of the property, both real and personal, of the said Sarah Shultz, deceased, remaining after the payment of her debts.”

“11. It is further found by the court that a close and confidential relation existed between the said Sarah Shultz and the defendant Helen Grow. That on June 24, 1930, at the time when the plaintiffs in this action, and the defendant Helen Grow were at the bedside of the said Sarah Shultz, she, the said Sarah Shultz, relied upon all of the parties there present; that they, and each of them, would carry out the request that she had there made, as set forth in the finding of facts herein. And that she relied upon those requests being carried out until she died. That the said Sarah Shultz did not change her said will or destroy it to modify it or revoke it.”

“12. It is further found that the defendant Helen Grow, on the said June 24, 1930, at the time that the plaintiffs and the defendant Helen Grow were at the bedside of the said Sarah Shultz, did not then and has not at any time since had any intention of carrying out the request made by the said Sarah Shultz.”

“13. That on the said 24th day of June, 1930, at the time the plaintiffs and the defendant Helen Grow were at the bedside of the said Sarah Shultz, she, the said Sarah Shultz, was of sound mind.” (Our italics.)

Upon these findings and others incidental the court stated the conclusions of law set out above.

[1][2] The appellant contends that from the facts found by the court a constructive trust results. Constructive trusts are raised by courts of equity in respect of property acquired by fraud or where it is so against equity that it should be retained by the holder. It is purely a creation of equity and there need be no intention of its creation. In 26 R. C. L. p. 1236 it is said: “It is a well settled general rule that if one person obtains the legal title to property, not only by fraud, or by violation of confidence of fiduciary relations, but in any other unconscientious manner, so that he cannot equitably retain the property which really belongs to another, equity carries out its theory of a double ownership, equitable and legal, by impressing a constructive trust upon the property in favor of the one who is in good conscience entitled to it, and who is considered in equity as the beneficial owner.”

[3] Our own Supreme Court, in an opinion by Chief Justice Monks, which has come to be the leading case in this state and one of the outstanding ones of the country, stated the rule so clearly that it seems almost absurd to reiterate or...