Kissinger v. Hill , 3 Ohio Law. Abs. 165 ( 1925 )

This action was originally brought in the Warren Probate Court by Alva Hill as administrator for the estate of Annie Spence, deceased, for the purpose of selling real estate to pay debts of said decedent. The case was taken to the Warren Common Pleas on appeal the defendants, being the plaintiffs herein, that is, the brothers and sisters of Annie Spence (nee Kissinger). It seems that the brothers and sisters had bought and paid for land and a home, title thereto being in Annie’s name. She married and at her death the brothers and sisters claimed their undivided interest in the property. Hill set up the fact that the action was barred because the statute of limitations had run. The property, Hill claimed, if the Kissingers’ allegations are true, should have passed at the death of the father in 1912. The action should have been commenced within 10 years from then; as it was it was begun in 1923. Judgment in the Common Pleas was in favor of Hill. Error was prosecuted and the Court of Appeals affirmed the judgment.

Attorneys—Jos T. Harrison, Cincinnati, for Kissinger; Eltzroth Maple & Maple, Lebanon, for Hill.

Kissinger contends that the brothers and sisters worked, putting every cent into the property. He claims that the property would have been partioned into undivided interests at an earlier time, but Annie, in _ whose name it was, threatened to commit suicide.

Kissinger contends that Annie Spence was merely trustee of a resulting trust, and the brothers and sisters as cestui que trusts, are entitled to the property; the general rule being that where land is purchased and paid for by one person and the title taken in name of another, there is a resultant trust in favor of the former, unless a different intention appears from the deed or attendant circumstances.