Smith v. Pohlman

HOUSER, Acting P. J.

Briefly, the record discloses that the plaintiffs are the sons of defendant; that certain funds having come into the hands of all the parties, in which each was equally pecuniarily interested, the entire amount was placed in the hands of the mother in trust; thereafter, following various successful business transactions therewith, a portion of the funds was invested in land, the title thereof being held in the name of the mother, and the remainder of the funds was distributed

imequally

among the parties. Unhappy differences having arisen as between the sons on the one side and the mother on the other, an action was commenced by the sons against the mother, which resulted in a judgment to the effect that as to angundivided two-thirds of the land the mother held the title thereto in trust for the sons—so that each of the parties was entitled to an undivided one-third interest in the land. As to the remaining assets of the trust, consisting of personalty, a reference for an accounting was ordered to the end that “when the amounts due to each of the parties are determined by such referee, the parties hereto shall be entitled to a judgment for the amounts due to them respectively.”

Appellant seeks a reversal of the judgment on the ground that, since from the findings made by the trial court it appears that an unequal distribution of the personalty of the trust was had among the parties, it necessarily follows that as to the land each of the parties could not be entitled to an undivided one-third thereof. Respondents contend that, if at the time the land was purchased each of the parties was equitably entitled to an undivided one-third therein, subsequent dealings among the parties with the remainder of the assets of the trust, by which one or more of the parties became equitably indebted to the third party,

[695]

would not have the effect of altering the

quantum,

of estate held by each of the parties in the land. From the findings made by the trial court it appears that each of the sons is largely indebted to the mother; and in that connection, appellant urges the point that a money judgment in favor of the mother against either or each of the sons would not be a proper determination of the matter or afford adequate protection to the mother.