11 Neb. 82 | Neb. | 1881
The right of the plaintiff to the relief sought rests upon an alleged express trust. He states in his petition that his wife Bertha shortly before her death in 1875, being desirous of conveying the land in controversy back to him, from whom she had received it, “ was informed and believed that she could not do so directly, or in any other manner than by conveying to some third person as trustee, and having such third person convey to her husband. ' Thereupon for the purpose of so conveying the said premises to plaintiff, and for no other purpose, on the first day of May, 1875, the said Bertha made a deed of conveyance- of the said
It is further alleged, and of this there is no dispute, that John Gr. Ealsken held the title so received until his death, which occurred in September, 1877, a period of over two years; and that he left a will, bequeathing this, with other property, to his four grandchildren, two of whom are sons of the. plaintiff. However, for the purpose, evidently, of avoiding the moral effect of this seemingly fair disposition of his property by the granddaughter, and his treating it as if it were in truth, what it appeared to be, his own, the plaintiff alleges that when he “ made said will he did not intend to include therein the land aforesaid, nor to devise the same.”
On an examination of the evidence we find nothing whatever, aside from the deed itself, to indicate the purpose of the grantor, Bertha, in making it. And the deed being absolute, the only inference to be drawn from her making it is, that she intended merely to invest John G. Ealsken with the fee, and to his own use. As to the allegation that she was advised to convey “ to some third person as trustee,” in order to place the title in her husband, there is not a particle of evidence.
Concerning the execution of the deed but very little is disclosed. As to who drafted it, nothing. The witness Marvin swears that he, as justice of the peace, took the acknowledgment, but saw no consideration pass between-the parties. Nothing was said on that occasion, which he understood, as to the object for which the deed was made. There was, therefore, so far as we are advised, no trust declared, or even contemplated by the grantor at the time of the conveyance. And the same is true of the grantee. As before shown it is averred in the petition that the deed was “made to himat his suggestion” solely for the purpose of having him convey to the plaintiff. But there is not a syllable of evidence to warrant this assumption. This, as well as the allegation of the grantor having been advised that it was necessary to convey the title “to some third person as trustee,” as a means of finally placing it in her husband, is a very important fact in the ease as made by the petition, and, if true, ought by all means to have been proved.
There is, however, some testimony, but not at all satisfactory, tending to show that John G-. Falsken took the conveyance for the purpose alleged, and also that he paid no consideration therefor. This testimony consists of declarations said to have been made by him in the presence of the witnesses Uhl, and Charles Ealsken and his wife, subsequently to the time he received the deed. Uhl testified that he overheard “ a conversation between John G-. Ealsken and August Ealsken, the plaintiff, in reference to what he supposed to be this very property in controversy.” This was in 1877, and, according to Uhl, “ August merely said, Father has got my property in his name,’ or words to that effect; it was in German; and the old gentleman said,
Charles Ealsken testified that his father said “ he got the deed from plaintiff just for a trust; that he would sign it back to him at any time he would call on him; that he did not call it his own. Then he said he had not paid anything for it.”
Q. Did you have more than one conversation about it with him ?
A. Yes, he spoke about it several times.
Q, Did you talk with him shortly before his death, or any time ?
A. He mentioned it that August didn’t call on him to sign it back to him; he was ready any time.
Q. What did he mean by signing it back to him ?
A. The property.
Q. Making a deed to him ?
A. Yes, sir.
On this subject, Minnie, the wife of the last named witness, testified as follows:
Q. What did he (John G-. Ealsken) say?
A. He said he hadn’t bought the land, but they wrote it over to him; he had it in his own ñamé.
Q. Did he say what he was going to do with the property?
A. He said he was going.to give it back to August Ealsken any time he wanted.
Q. Did he say anything in regard to paying for the land?
A. He said he did not pay anything for it.
And on cross-examination she testified that this talk took place in May or June, 1875.
All of this, besides being, what hearsay declarations of one deceased are always considered, very weak testimony, has opposed to it the fact, pretty clearly estab
After a careful consideration of the evidence, not only are we unable to say that the court below incorrectly estimated its value, but, on the contrary, we believe that in holding it to be insufficient to establish the alleged trust, the only conclusion that could safely be drawn was reached.
In the very dim light shed upon the transactions of the parties respecting this property, prudence seems to dictate that rather than disturb this absolute title, w& should guard it as left by the holder at the time of his decease. Holding these views, the judgment must be affirmed.
Judgment affirmed.