Allen v. Meyers

CURTIS, J.

Action brought to declare a trust in certain real property standing in the name of the defendant. Plaintiffs are the children of Mary Gassaway by a marriage prior to her marriage to Joseph H. Gassaway on November 6, 1915.

[313]

The defendant is a daughter of said Joseph H. Gassaway by a marriage prior to his marriage with Mary Gassaway.. At the time of the marriage of Joseph H. Gassaway and Mary Gassaway, the latter was the sole owner of the real property involved herein, and remained such owner until the day before her death, which occurred on November 8, 1919. Her death occurred after and as a result of a protracted and severe illness. On November 6, 1919, her husband said to her that she was going to die and that if she. would make a deed of everything to him he would deed it back to her children and thus save cost of probating the estate. The following day and while Mary Gassaway was in an almost unconscious state, she signed a deed to said real property at the request and in favor of her husband, the said Joseph' H. Gassaway. She died the next day. There is also evidence in the record that Mary Gassaway had $1800 in the bank which her husband took possession of after her death. Joseph H. Gassaway continued in the possession of said real property up to the time of his death which occurred on November 23, 1932. A short time before his death he deeded said real property to the defendant who, as stated before was his daughter by a marriage prior to his marriage to Mary Gassaway. This deed was recorded on June 5, 1933, which was after the death of Joseph H. Gassaway. This action was commenced December 20th of the same year. The evidence also showed that plaintiff T. J. Allen had conveyed to Joseph H. Gassaway during the lifetime of the latter all of the interest of said T. J. Allen in said real property. Upon the conclusion of the trial, the court rendered judgment that defendant Olivia J. Meyers holds title to said real property in trust as to an undivided third thereof for each of the plaintiffs E. C. Allen and Zelma M. Lloyd and that plaintiff T. J. Allen has no interest in said real property. From this judgment the defendant has appealed.

It is first contended that the evidence is insufficient to support the finding of the trial court that there was a trust created. The evidence upon the question as to whether a trust was created is brief and is confined entirely to the testimony of plaintiff Zelma M. Lloyd. It is, however, uncontradicted, and is, in our opinion, sufficient to support the court’s finding. She testified that on the day before the deed was executed by her mother to Joseph H. Gassaway, the latter told