McGILL et al.
CHAPPELLE et al.
Rehearing Denied May 31, 1916.
Appeal from Circuit Court, Duval County; Daniel A. Simmons, Judge.
Bill in equity by Lewis W. Chappelle and another against Rosa Chappelle McGill and another. From a decree for plaintiffs, defendants appeal. Reversed, and bill of complaint dismissed.
Syllabus by the Court
Where a resulting trust is sought to be established by parol evidence, the burden rests upon the person asserting the existence of the trust to remove every reasonable doubt as to its existence by clear, strong, and unequivocal evidence.
The finding of a chancellor on the testimony taken before an examiner will not be given the same effect as the verdict of a jury, because not based upon testimony of witnesses sworn and testifying before him, and if the evidence so taken before the examiner clearly shows that the conclusions of the chancellor were incorrect, his conclusions will be reversed.
COUNSEL [71 Fla. 480]Cockrell & Cockrell, of Jacksonville, for appellants.
John W. Dodge and J. W. Holland, both of Jacksonville, for appellees.
On the 12th day of January, 1912, Lewis W. Chappelle and James E. Chappelle exhibited their bill in equity in the circuit court for Duval county against Rosa Brooks Chappelle, in which it was alleged in substance that the orators were brothers of Pat Chappelle, who died intestate in Jacksonville, Fla., on the 21st day of October, 1911, leaving surviving him his widow, Rosa Brooks Chappelle, and no children; that the father and mother of orators and Pat Chappelle were named Lewis Chappelle and Annie Chappellee; that the father died about five years and the mother died about three years before the filing of the bill; that the said Lewis and Annie Chappelle were the parents of the orators, Pat Chappelle, and their two sisters, Hattie Chappelle Jackson and Annie Chappelle, who were the sole heirs of their deceased parents, Lewis and Annie Chappelle; that Pat Chappelle and orators, Lewis W. and James E. Chappelle, in the year 1900 entered into a copartnership for conducting a saloon and theatrical business; that by the terms of the copartnership Pat Chappelle was to receive two-thirds of the net profits of the business and the orators were to receive jointly one-third; that pursuant to this agreement of copartnership a saloon was opened in Tampa, Fla., and a theater known as the Buckingham Theater was located adjacent to the saloon and was operated as a theater and opera house; that the expenses of both businesses were paid out of one common fund, which was made up out of the receipts of both businesses; that for several months the partners gave their personal attention to the two businesses;[71 Fla. 481] that in a short while Pat Chappelle, on behalf of the partnership, started a troupe of colored actors on the road, presenting various theatrical performances, but principally two performances, known as the 'Funny Folks' and 'Rabbit's Foot'; that Pat Chappelle managed the theatrical business of the partnership while on the road, and the orators remained in charge of the local business in Tampa, namely, the 'saloon and the Buckingham Theater'; that the theatrical business often met with reverses, and became in need of funds for transporting the outfit from town to town, which funds were furnished by the partnership derived from the saloon business in Tampa; that in 1902 James E. Chappelle began to travel with Pat Chappelle in the theatrical troupe, and Lewis continued the saloon business in Tampa until 1904, when this part of the partnership business was by agreement closed,' and in 1905 Lewis Chappelle joined the theatrical troupe and continued on the road with his brothers Pat and James Chappelle 'all the seasons thereafter that the partnership kept this theatrical troupe on the road, until, to wit, 1910.'
The bill also alleges that the copartnership was never dissolved during all these years and was financially successful; that Pat Chappelle invested the profits of the business, which were partnership funds, in the real and personal property described in the bill; that there was never any division of the profits among the alleged partners, and that Pat Chappelle applied all the funds arising from the business over its expenses
to his personal extravagances and the purchase of real and personal property, the title to which he took in his own name. The following is the description of the real and personal property which it is alleged was purchased with partnership funds by Pat Chappelle, and which it is alleged belongs to the said copartnership: [71 Fla. 482] First, lot 1 and east 16 feet of lot 2, block 22, division E, La Villa; second, lot 4 of block 6, Burbridge addition to La Villa; third, lots 21 and 22, block 106, Hull's subdivision of Hart's Map of La Villa; fourth, lot 12, L'Engle's subdivision of lots 182 and 187, Wilder's subdivision; fifth, east half of lot 1, block 35, division E of La Villa; sixth, lot 3 of block 5 of Harris, L'Engle & Brady's subdivision; seventh, southerly 70 feet of lot 29 of block 5, Burbridge's addition to La Villa; eighth, north 70 feet of west 30 feet of lot 363 of De Cotte's subdivision of Hansontown; ninth, east 42 feet of the west 84 feet of lot 4, block 23, division E, La Villa; and, tenth, west 43 feet of lot 4, block 15, McIntosh's addition to La Villa--all the above-described property being within the corporate limits of the city of Jacksonville. The personal property is alleged to consist of one Pullman car named 'Wyevale,' one named 'Rosa,' and all theatrical paraphernalia now stored in a barn located on the east 42 feet of the west 84 feet of lot 4, block 23, division E, La Villa, known as 1054 West Church street.
The bill also alleges that Pat Chappelle lived extravagantly, used large amounts of money in travel and other luxuries expended for his personal wants and desires, that he purchased various articles now claimed as part of his personal estate, and paid out of said funds the premiums upon the life insurance policies held by him upon his own life, which policies, amounting to $10,000, have been collected by the defendant. It is also alleged that the title to the properties described under Nos. 7, 8, 9, and 10 was taken in the name of Pat Chappelle as trustee for his mother, Annie Chappelle, and by various conveyances in fraud of the rights of his mother and brother the title was transferred from the mother to Pat Chappelle individually; that much of the [71 Fla. 483] property was improved at the time of its purchase, and much has been improved since by the erection of buildings under the supervision of Pat Chappelle and his brothers; that Pat Chappelle collected the rents from the property and has never accounted to the orators for their portion. It is also alleged that the family relations existing between the orators, Pat Chappelle, their parents, and sisters, were very close and intimate; that the orators, relying upon Pat Chappelle as their elder brother and custodian of the partnership funds, believing that he was preparing for their future welfare in the handling of the funds of the alleged ...