Vance v. Grow

• Decision Date: 15 June 1934
• Docket Number: No. 26459.,26459.
• Citation: 190 N.E. 747,206 Ind. 614
• Parties: VANCE et al. v. GROW et al.
• Court: Indiana Supreme Court

206 Ind. 614

190 N.E. 747

VANCE et al.

v.GROW et al.

No. 26459.

Supreme Court of Indiana.

June 15, 1934.

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

Suit by Emma Vance and others against Helen Grow and others. From a judgment in favor of the defendants, the plaintiffs appeal.

Judgment affirmed.

Superseding opinion in 185 N. E. 335.

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

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

ROLL, 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 buildings and 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 thesaid 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.”

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

Appellants present the question whether, under the facts found by the trial court as above set out, the court should declare a constructive trust, in favor of appellant. They assert the affirmative of this proposition and cite many cases in support of the same. Among the cases cited is the case of Ransdel v. Moore (1899) 153 Ind. 393, 53 N. E. 767, 53 L. R. A. 753. We have examined this case with much care and find no fault with the holding as there pronounced. We are, however, unable to agree with the appellants that this case is decisive of the question here presented in their favor. The law as announced in that case supports the position taken by appellees in this case. It might be well to review the facts in the Ransdel Case and compare them with the facts in the case at bar.

In the Ransdel Case, one Elizabeth A. Rodgers, sister of appellants, was the owner of certain real estate in Clinton county, Ind., as well as real and personal property in Boone county; that in 1876 said Elizabeth A. Rodgers became engaged to marry one Willis E. Moore, a widower with three children by a former marriage, who were the appellees therein; that Elizabeth A. Rodgers was a widow, without children or their descendants living, and her father and mother both dead; that she greatly desired that a large portion of her property should, at her death, vest in her brothers, which fact was made known to Willis E. Moore before their marriage, and agreed to between them that title to the Clinton county land should, either by will or deed, be vested in her brothers. That afterwards they were married, had no children; that in 1894 said Elizabeth became sick and, believing she was going to die, requested her husband to procure an attorney or some other competent person to make and prepare a deed or will to carry out her purpose and wish to vest title to her real estate in appellants; that she was of sound mind but physically unable to leave the house; that her husband promised to secure such a person, but he did not; she constantly grew worse, and again she called her husband to her bedside and, as a last request, repeated her former statement, and again he postponed her, telling her that she was then unable to make a will, but to rely on him and that he would see that her brothers should have said real estate, in case she should die without having made a will or deed; that in case she should die without having made a will or deed to them, he would receive the title to said land in trust for them and see that the title thereto was properly vested in them; that she had confidence and faith in her husband and acquiesced in said statements and relied upon them, and shortly thereafter died without making a will or deed or otherwise conveying said real estate to appellants except as above set out; that soon after her death Willis E. Moore, with the intention of carrying out the wishes of his deceased wife and of manifesting the trust imposed upon him, called the three brothers together for the purpose of vesting the title to the real estate in them by executing to them a deed for the same. At this meeting it was suggested and agreed, for the reasons set out, that Mr. Moore should continue to hold the title in trust for them and manage the same and as soon as possible find a purchaser and sell the same and divide the proceeds among them. This agreement was evidenced by a written agreement which was signed and delivered to appellants and is set out in full in the opinion. Afterwards said Moore executed two several mortgages on this real estate, and divided the proceeds thereof as set out in the agreement. Accompanying the check to one of the appellants was a letter from Mr. Moore wherein he again acknowledged the trust...