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EVA M. KOHR v. KENNETH G. KOHR AND GLORIA A. KOHR (03/19/79)

submitted: March 19, 1979.

EVA M. KOHR, APPELLANT,
v.
KENNETH G. KOHR AND GLORIA A. KOHR, HIS WIFE



No. 1885 October Term, 1978, Appeal from the Order in the Court of Common Pleas of Lebanon County, Civil Action - Equity, at No. 22, 1976.

COUNSEL

David J. Brightbill, Lebanon, for appellant.

George E. Christianson, Lebanon, for appellees.

Price, Spaeth and Lipez, JJ. Spaeth, J., concurs in the result.

Author: Price

[ 271 Pa. Super. Page 325]

The instant proceeding in equity was brought by appellant to secure a money judgment and to establish a constructive trust arising from funds paid by appellant to her son, appellee Kenneth Kohr. After a hearing, the chancellor entered a decree nisi denying the requests and finding that the funds had not been secured by Kenneth Kohr through undue influence. Exceptions were dismissed and the rule made absolute, prompting this appeal. On appeal appellant contends that the chancellor erred in finding that Kenneth Kohr did not engage in undue influence, and in refusing to enter a monetary judgment, order a constructive trust, or at a minimum, order him, sua sponte, to account for his expenditure of the funds. Finding no error, we affirm the order of the court of common pleas.

The salient facts of this appeal are as follows. On January 23, 1973, appellant's husband died. Shortly thereafter, appellant and appellees commenced residing together first in appellees' home in Northampton, Northampton County and then in appellant's home, also located in Northampton. As a result of the death of her husband, appellant received two checks totaling $11,000 from an insurance company and from a fraternal association. Appellant endorsed the checks over to Kenneth Kohr, who in turn deposited $10,000 in appellees' joint checking account and $1,000 in their joint savings account. Kenneth Kohr utilized the funds in the checking account to pay the debts and funeral expenses of his deceased father and to pay the living expenses of appellant and of appellees and their family.

In May of 1973, appellant expressed a desire to move to Lebanon County to be near her other children. In that month, she had sold her home for a net price of $29,000. The $29,000 from the sale of the home and $1,000 from appellees' savings account were transferred to a new checking account in a Reading bank in the name of appellant and Kenneth Kohr. In July 1973, appellant, appellees and their

[ 271 Pa. Super. Page 326]

    family moved to Lebanon County where they resided with relatives. A lot was purchased by appellees and a home erected in February 1974. At appellant's request, the plans for the home were modified to include a fourth bedroom for appellant to use. During the initial construction of the home, appellant stated that she would give appellees all of her money as a gift to aid in the construction. Kenneth Kohr refused to accept all of the funds, but did accept a gift of $10,000. Shortly thereafter, appellant began dispensing considerable sums from the joint checking account that she held with Kenneth to finance the construction of the home. The procedure for disbursement was for Kenneth to request a check from appellant. Appellant had possession of the checkbook and would give a check to Kenneth who would make it out to the proper payee in the proper amount and then present it to appellant for her signature. In total, approximately $23,000 was expended from the account on various items of construction, and apparently no agreement was made whether the funds were a gift or a loan. At one point Kenneth Kohr informed appellant and various other relatives that appellant could continue to reside with appellees and that appellees would support her forever.

From February 1974 to October 1975, the parties lived uneventfully in the Lebanon home. In October 1975, appellant vacated the home under a belief that appellees simply no longer wanted her to continue to reside with them. On July 20, 1976, appellant filed suit requesting various forms of relief. First, she requested a monetary judgment in the amount of $33,000, representing the proceeds from the insurance policies ($11,000 minus $1,000 transferred to the Reading account) and the $23,000 paid by appellant for construction of the Lebanon County home. Second, she requested that appellees be designated trustees of a resulting trust in her favor in the Lebanon County home in the amount of $33,000. Finally, the complaint prayed "for such other relief as the Court may deem." The chancellor denied all recovery, and appellant appeals alleging various errors.

[ 271 Pa. Super. Page 327]

First, appellant contends that the evidence establishes the creation of a resulting trust. In this respect, we note that in an appeal from an equity proceeding a chancellor's findings of fact have the effect of a jury verdict and will not be reversed if supported by the evidence. See Brentwater Homes, Inc. v. Weibley, ...


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