Winfrey v. State Life Ins. Co.

• Decision Date: 13 May 1949
• Docket Number: 28445.
• Citation: 85 N.E.2d 821,227 Ind. 449
• Parties: WINFREY et al. v. STATE LIFE INS. CO. et al.
• Court: Indiana Supreme Court

85 N.E.2d 821

227 Ind. 449

WINFREY et al. v. STATE LIFE INS. CO. et al.

No. 28445.

Supreme Court of Indiana

May 13, 1949

Appeal from Hancock Circuit Court; Cassius Gentry Judge.

Frank A. Symmes, Wray E. Flemming, Frank A. Symmes, Jr., Charles W Symmes and Owen S. Boling, all of Indianapolis, for appellants.

Robert Brokenburr, and Forest W. Littlejohn, both of Indianapolis for appellees.

EMMERT Judge.

This appeal has been transferred to this court from the Appellate Court under § 4-209, Burns 1946 Replacement. The appeal is from a judgment declaring that upon the payment of the sum due the appellee The State Life Insurance Company on a contract for the sale of the real estate here involved, said insurance company was to issue a warranty deed to the appellee Ella C. Abel and appellant Shirley H. Winfrey. Upon the cross-actions between the appellants Winfrey, and appellee Ella C. Abel, the finding declared that upon the death of Henry H. Abel his undivided one-half interest in the contract descended to his widow, Ella C. Abel. The error relied upon in appellants' brief for reversal is the overruling of appellants' motion for new trial.

The appellants contended in the trial court that Shirley H. Winfrey became vested with the entire ownership of the assets of a partnership, which was engaged in the undertaking business, by virtue of a written contract purported to be executed the 9th day of June, 1925, which recited in substance that the firm had taken out policies with the Metropolitan Life Insurance Company on each member of the firm, and paid the premiums thereon, and that upon the receipt of the check covering the amount of insurance, which was in the principal sum of $1,250 for each policy, plus the sum of $100 to be paid on burial expenses of the deceased member, the survivors became the owners of the partnership interest of the deceased member. ^[1] Appellant Winfrey testified the contract was drafted by the partners without the aid of counsel. The appellee Ella C. Abel under oath denied the execution of this contract by her deceased husband, Henry H. Abel.

It is not necessary to discuss the validity of the partnership contract or its provisions. The evidence was conflicting on the question of the execution of this agreement, and the burden of proving the execution thereof, under the issues as framed, was upon the appellants. Section 2-1643, Burns 1946 Replacement; Pittsburgh, C. C. & St. L. Ry. Co. v. Ft. Wayne & Northern Indiana Traction Co., 1923, 193 Ind. 405, 138 N.E. 759. The burden was also upon the appellants to establish the contract for the purchase of the real estate, which was executed August 10, 1936, was an asset of the partnership. It did not recite that it was executed by Shirley H. Winfrey and Henry H. Abel as partners.

Shirley H. Winfrey as a witness for himself was at many times noncommital, evasive and not able to remember. The partnership agreement was oral and entered into in March, 1922. He presented no receipts, cancelled checks, bank records, or books of account, to show that the payments under the contract to purchase the real estate executed August 10, 1936, were from partnership funds. Only one ledger account was introduced, and it only contained was introduced, vices rendered for the burial of Henry H. Abel, and the charges therefor, but the amount of this was contradicted by his verified claim filed in the estate of Henry H. Abel. No tax records were introduced. He failed to prove that the contract for the sale of the real estate became property of the partnership by proving it was being purchased with partnership funds and was used as an asset of the partnership within the rule recognized in Matlock v. Matlock, 1854, 5 Ind. 403; Booher, Rec. v. Perrill, 1895, 140 Ind. 529, 40 N.E. 36; Dickey v. Shirk, 1891, 128 Ind. 278, 27 N.E. 733. There was evidence that the undertaking business was conducted upon the real estate, but there was no uncontradicted evidence as to what arrangement Shirley H. Winfrey and Henry H. Abel had between themselves for such use of the real estate. For all this record shows, Henry H. Abel could have been making all the payments on the real estate from his personal funds. There was no evidence to contradict the prima facie evidence of the contract for purchase which gave each of them an interest as tenant in common. Section 56-111, Burns 1943 Replacement.

Nor does the record show a case of estoppel against Henry H. Abel by reason of partnership funds being used to pay the premiums on the insurance followed by his acceptance of the benefits under said contract, which estoppel would bar his widow. His policy of insurance had been taken out some time before the purported execution of the partnership contract for insurance. The written evidence does not disclose that the partnership funds were used to pay the premiums on his insurance or the premium of any other member of the firm. The record does not conclusively establish that he knew anything...