Parshall v. Parshall

[549]

TYLER, P. J.

This is an action to declare a trust in certain real and personal property and to compel a conveyance thereof to plaintiff. An accounting is also asked for. By a fourth amended complaint it is alleged in substance that plaintiff and defendant Mary T. Parshall intermarried in September, 1885, and ever since have been husband and wife; that defendant Leonora B. Parshall is the daughter of plaintiff and defendant Mary, she having been adopted by them in the 3rear 1888 when a child but a few months old; that defendant T. N. Pierce is a nephew of defendant Mary. That in the year 1894 one Harriet E. Car letón, the mother of plaintiff, died and left the sum of $13,547.70 in real and personal property to defendant Mary, but nevertheless in trust and upon the express understanding and agreement that she would hold the same, together with the rents, issues, and profits thereof, for plaintiff’s benefit and support during his lifetime, and that upon his death the funds remaining in her hands should be distributed by Mary to the heirs at law of plaintiff or those designated by him. That Mary entered into possession of the property and managed and controlled the same. That during the twenty-nine years since their marriage plaintiff earned and placed in the possession of Mary sums of money with the understanding and agreement that the necessary proportion should be used for household expenses, and that the remainder should be held in trust by her for investment subject to the direction of plaintiff during his lifetime, and upon his death remainder over'to his heirs. That said trust funds, together with the funds derived from plaintiff’s mother, were commingled by Mary, and thereby formed one trust fund with which she purchased and took title in her own name certain real property, described in the complaint.

That prior to the twenty-fourth day of July, 1913, plaintiff demanded an accounting and requested defendant Mary to deliver and convey to plaintiff said trust property, but that she failed and refused to account or convey as demanded, whereupon plaintiff filed an action to compel her so to do. That subsequently the parties agreed to settle and compromise the suit upon the following conditions:

It was agreed, so it is alleged, that they should join in the execution of a deed to defendant Leonora B. Parshall of the real property involved in the suit, and that said