77 Ind. App. 575 | Ind. Ct. App. | 1922
March 2, 1920, one John Sullivan lost his life by drowning in Fall creek, in the city of Indianapolis, Indiana. He lost his life while attempting to save two colored boys from drowning in said creek. He left surviving him a son, James Sullivan, commonly called “Jimmy,” who was then of the age of seven years, and who had lost his mother by death when he was about eight months old. The father and “Jimmy” lived at the home of one Pat Sullivan, father of said John. The Sullivans, were in very moderate circumstances. After the death of said John, and, we may say as a recognition of his heroic act in sacrificing his own life in an endeavor to save the lives of others, a movement was started to raise a fund for the benefit of his surviving son, “Jimmy.” The matter of raising this fund
On March 18, 1920, the Colored Men’s Branch of the Y. M. C. A. turned over the funds in its possession, so collected, to the appellee herein, under the following agreement, viz.:—
“This agreement made and entered into by and between the Colored Men’s Branch of the Indianapolis Y. M. C. A., who shall hereinafter be known as the party of the first part and the Children’s Aid Society, Indianapolis, Indiana, who shall hereinafter be known as the party of the second part, WITNESSETH: That party of first part agrees to turn over to party of second part the sum of $1,358.16 which sum constitutes what is known as “The Jimmie Sullivan Fund” and is composed of various sums of money contributed by individuals and institutions to said fund, for the use, education, and maintenance of James Sullivan under the following conditions. The said fund is to be deposited on interest or otherwise invested at the dis('s,®lon of party of second part and the proceeds thlfreof and so much of the principal as necessary shsfll be paid to James Sullivan from time to time as his needs may require until he attains the age of twenty-one. If at that time there is any part of said sum left in the hands, custody, and treasury of party of second part, said sum may be turned over in full to said James Sullivan and party of second part will thereby be relieved of all obligations and responsibilities in connection therewith; that in the*578 event of the death of James Sullivan before he attains the age of twenty-one, said money is to be paid to his grandparents; in the event of the death of the grandparents of James Sullivan, whatever part of said money is still remaining it shall go to The Children’s Aid Society for the use and benefit of dependent children.
Party of the second part accepts said sum of $1,358.16 and shall use it in accordance with the terms and conditions above set forth and shall exercise its discretion as to how much of said principal shall from time to time be expended for the use and benefit of the said James Sullivan, and for the use of his grandparents in the event of the death of the said James Sullivan, and to otherwise faithfully carry out the terms and conditions of the above agreement.
In witness whereof the parties have hereunto set their hands and seals this the 18th day of March 1920.
(Signed) Colored Men’s Branch Y. M. C. A. by L. E. DeFrantz, Secy.
(Signed) The Children’s Aid Association by Paul L. Kirby, Secy.”
On March 23, 1920, The Indianapolis News turned over the funds in its hands so collected to the appellee herein, under an agreement similar to the above, as to its main provisions.
After appellee had received the funds above mentioned in said contracts, additional funds came into its hands from said Indianapolis News, Indiana Daily Time* and from certain individuals, all to be added to the mlneys already received by it and to become a part of the' funds received under said contract so that the total amount of the funds so received was $3,126.55.
On October 6, 1920, upon a petition theretofore duly filed in that behalf, the appellant was, by the Marion Probate Court, duly appointed as guardian of James Sullivan, the boy for whom said fund was raised, and thereafter, on October 20, 1920, it filed its complaint which was the basis of this action, alleging therein that
This complaint was answered by the appellee, first, by a general denial, and second, by a special answer in which it admitted having received a certain sum of money ($3,126.55), but alleged it held the same as a trustee for said James Sullivan under the contracts hereinbefore mentioned, copies of which said contracts were attached to said answer as exhibits. The answer further alleged that the appellee, as such trustee had invested all of said money so received in United States Treasury Certificates, in Liberty Bonds, and in War Savings Stamps. Other allegations contained in said answer need not be herein set out, as they are of no controlling importance. This paragraph of answer was met by a reply in general denial.
Upon the issues thus formed the cause was submitted to the court for trial, which resulted in a finding against the appellant, and in favor of the appellee. There was judgment accordingly. The appellant’s motion for a new trial, on the grounds: (1) That the decision of the court was not sustained by sufficient evidence, and (2) was contrary to law, having been overruled, it now prosecutes this appeal upon an assignment of error challenging the correctness of said ruling.
In the decision of this case we are called upon first, to declare the legal effect of said contracts, under which said moneys were received.
Pomeroy in his work on equity, says: “Private trusts are those created by. some written instrument, or in some trusts of personal property by a mere verbal dec
“The extent and incidents of the rights held by the respective parties must, of course, vary with the nature of the trust itself and the duties which the trustee is called upon to perform. It is a universal rule, however, that the trustee’s estate and power over the subject-matter are commensurate with the duties which the trust devolves upon him, and are sufficient to enable him to perform all those duties.” Pomeroy, Equity Jurisp. (4th ed.) §991.
“No particular technical words need be used; even the. words ‘trust’ or ‘trustee’ are not essential; any other words which unequivocally show an intention that the legal estate was vested in one person, but to be held in some manner or for some purpose on behalf of another, if certain as to all other requisites, are sufficient.” Pomeroy, Equity Jurisp. (4th ed.) §1009.
“A second species of trust by inference sometimes arises when property is given to a parent, or person in loco parentis, with no trust declared in terms, but with such directions for the maintenance of his family or children as enable the court to infer an intention on the part of the donor that the property should be held in trust for the purposes of the maintenance. No definite rule can be laid down; each case must stand upon its own circumstances. If the language is sufficient for the intention to be clearly inferred, the trust will be enforced.” Pomeroy, Equity Jurisp. (4th ed.) §1012.
We find no error in the record. Judgment affirmed.