Zorich v. Zorich
| Decision Date | 21 November 1949 |
| Docket Number | 17859. |
| Citation | 88 N.E.2d 694,119 Ind.App. 547 |
| Parties | ZORICH et al. v. ZORICH. |
| Court | Indiana Appellate Court |
Hodges, Ridgely & Davis, Gary, for appellants.
Ellis C Bush, Gary, Blaz A. Lucas, Gary, for appellee.
This action was brought by the appellee Peter Zorich, against his son the appellant Walter Zorich, and his daughter, the appellant Joann Orystick, to establish an express trust in certain U S. Savings Bonds and in certain Postal Savings Certificates.
The complaint alleged that in January 1942, he had $3324.00 and that he directed the appellant Walter Zorich, to buy U S. Government Bonds in the name of the appellee, which Walter Zorich agreed to do, but that the said Walter Zorich bought the U. S. Government Bonds with such money in his own name that beginning November 21, 1944, the appellee deposited at different times various sums totalling $2500.00 in U. S. Postal Savings in the name of appellant Joann Orystick, which sum the said Joann Orystick agreed to hold in trust for her father, the appellee; that during the years 1944, and 1945, the appellee deposited the sum of $2076.00 in Postal Savings in the name of appellant Walter Zorich, which sum the said Walter Zorich agreed to hold in trust for his father.
The appellant Walter Zorich filed a cross-complaint in two paragraphs. The first paragraph of cross-complaint alleged the gift by appellee to him of $2500.00 in U. S. Savings Bonds purchased in his name; and secondly, the gift of $2076.00 by the appellee to said appellant by the appellee depositing that sum in Postal Savings in the name of appellant, Walter Zorich.
The appellant Walter Zorich, filed a second paragraph of cross-complaint contending that the purchase of U. S. Government Bonds by appellee Peter Zorich, in the name of the appellant Walter Zorich, constituted a contract with the U. S. Government for the benefit of Walter Zorich; that the contract was in force; and that the court neither could nor had any authority to interfere with that contract.
The appellant Joann Orystick, filed a cross-complaint and alleged that beginning in November 1941, at a time when said appellant was a minor, appellee began making gifts to her by depositing money in the post office in her name and in all, $2500.00; that the making of all of such deposits constituted the making of a completed gift.
The decree of the court was in favor of appellee on his amended complaint and against both appellants.
The appellants have assigned as error the overruling of their motion for a new trial. The reasons assigned in the motion for a new trial and now relied upon by appellants, are as follows:
(1) That the decision of the court is not substantiated by sufficient evidence.
(2) The decision of the court is contrary to law.
The evidence discloses that the appellee was an illiterate Serbian, 55 years of age who came to the United States in 1907, worked as a laborer in the Gary steel mills since 1911, never went to school in his life; and can not read or write English.
The evidence shows that on the day appellee Peter Zorich, opened the Postal Savings account in the name of appellant Walter Zorich, while at the post office in the City of Gary and before the account was opened, appellant Walter Zorich agreed that the money should be put in his name and that he would turn the money back to appellee any time appellee wanted it done.
The evidence in substance shows that at the time the first deposit was made in the name of appellant Joann Orystick, the appellee said to her that at any time, that she was to turn the money back to appellee from her name, and put it in his name and Joann said, 'Any time you like it Papa'.
Thus it appears from the evidence that when the respective Postal Savings accounts were opened in the names of the appellants, there was an agreement between the appellee and the appellants, respectively, that when appellee wanted the money on the accounts turned back to him it would be done.
The evidence further shows that the $2500.00 was deposited in Walter's name in Postal Savings over a period of about two years.
Appellee purchased $3325.00 face value of U. S. Defense Savings Bonds on January 31, 1942. These bonds were purchased in the name of Walter alone, in violation of appellee's instructions to Walter to have the bonds put in appellee's name first, and in Walter's name second. It is the position of appellee that these bonds being purchased by trust funds, money that appellant Walter had agreed to hold and turn back to appellee whenever appellee wanted it, were impressed with the same trust and are the property of appellee.
The evidence shows that there was no delivery to appellants of any of the Postal Savings Certificates or Bonds involved in this case.
The Postal Savings Certificates issued from time to time representing deposits made on the account opened in Walter's name on the 5th day of July, 1939, and on the 21st day of January, 1942, converted into the United States Defense Savings Bonds involved in this case were continuously kept by appellee Peter Zorich, in his own possession and under his absolute control and dominion from the instant of the issuance of each certificate until they were converted into the involved bonds on the 31st day of January, 1942. Said bonds were then continuously kept in his exclusive possession and under his control and dominion until the date of the trial of this case. Continuously from the instant of their issuance, each of the Postal Savings Certificates representing deposits on the account in the name of appellant Joann was kept by appellee in his possession and under his dominion and control until the trial of this case.
Continously from the instant of their issuance, each of the Postal Savings Certificates representing the deposits in the name of appellant Walter Zorich from the 25th day of February 1944, until the 28th day of November 1945, was kept by appellee in his exclusive possession and under his absolute control and dominion until the date of the trial in this case.
Appellants in their brief herein has called our attention to § 2-3229, Burns' 1946 Replacement, which says that this court shall on appeal in non jury cases, weigh the evidence on trial, and, if it appears from all the evidence that the judgment is not fairly supported by or is against the weight of the evidence, shall award judgment accordingly. It has been repeatedly held, that the above statute does not require this court on appeal to weigh conflicting evidence. Hitt v. Carr, 1928, 201 Ind. 17, 26, 162 N.E. 409 and cases cited; Gilchrist v. Gilchrist, 1947, 225 Ind. 367, 75 N.E.2d 417.
This court will not weight the evidence and will consider only that evidence most favorable to the decision of the lower court. Gamble v. Lewis, Ind.Sup.1949, 85 N.E.2d 629.
The appellant contends that the deposit of funds by appellee in U. S. Postal Savings and having the certificates issued in the respective names of each of the appellants constituted a complete gift of the funds so deposited and under the pleadings and the evidence the trial court had no authority to decree a trust. In the case of Crawfordsville Trust Co. v. Ramsey, 1913, 55 Ind.App. 40, 66, 100 N.E. 1049, 1059, 102 N.E. 282, the court said that the following elements are necessary in a gift inter vivos. '(1) The donor must be competent to contract; (2) there must be freedom of will; (3) the gift must be completed with nothing left undone; (4) the property must be delivered by the donor and accepted by the donee; (5) the gift must go into immediate and absolute effect.'
The Supreme Court in the case of Smith, Adm'r v. Dorsey, 1872, 38 Ind. 451, 10 Am.Rep. 118, said:
The appellee's testimony is that he never intended to give the involved bonds or Postal Savings to the appellants or either of them.
The evidence shows that when the accounts were opened in the Postal Savings accounts they were opened upon the agreement that the money should be turned back to the appellee whenever he wanted it done.
The appellee, at all times, kept all the involved Postal Savings Certificates and bonds in his exclusive possession and under his control and dominion. There was no delivery of any of the Postal Savings Certificates or bonds in this case.
Delivery of the alleged gift must be made with both an intention to give, and a stripping of the donor of all dominion or control over the thing alleged to be given.
The change of the title must be irrevocable. Words alone, unaccompanied by delivery, are not sufficient to constitute a gift, except where the alleged gift is already in the...
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