
    No. 139
    XANDER, Exec. v. ZEHRING, et
    No. 18886.
    Supreme Court
    On motion to direct Clark Appeals to certify record.
    1-14-25.
    3 Abs. 18.
    1190. TRANSFERS—When note or other instrument is placed in escrow; can party who by its terms, may ultimately have title; transfer it while same is still in escrow?
   This action was originally brought in the Clark Common Pleas by Worthy Circle, administrator de bonis non, of the will of Susie Flick, daughter-in-law of Jacob Flick, deceased. It was sought to set aside a contract of which Susie and Lizzie Flick were parties of the first part, and Charles Zehring, party of the second part. Circle also endeavored to set aside endorsements on promissory notes and an endorsement on a mortgage securing the same.

The contract as claimed by Circle, purported to contain provisions to the effect that in consideration of Zehring agreeing to execute a Will, and to care for the parties of the second part during the balance of their lives, 4 notes totalling $4960, executed by Zehring, were to assigned and to him transferred. The security on the notes executed by Zehring was a 56 acre tract of land which was bequeathed to him by Jacob Flick, husband decedent of Lizzie. Said land was sold for $8960, $4000 of the proceeds of said sale was received by Zehring, the balance of the purchase price over and above the bequest to him made by Jacob Flick was secured by his notes.

Worthy Circle contended that:

1. Suzie and Lizzie Flick were old and ill and their respective wills executed in favor of Zehring were so executed under undue influence.

2. Zehring did not live up to the contract into which he entered, as evidenced by his sending in a bill for nursing Susie Flick, and purchasing only one-third of the food necessary to run the household of which he was a member.

3. Zehring had conveyed title to the land which he held in escrow and which might some time be his.

The Common Pleas rendered judgment in favor of Zehring. Error was prosecuted to the Court of Appeals which held:

1. Circle must prove his averments by a preponderance of the evidence even though the relation between Zehring and the Flicks was confidential.

2. Endorsements on said notes in controversy, and placing of same in escrow were regular, and that there was lawful delivery of same that passed title.

Attorneys—Chase Stewart and Clem V. Collins, for Xander; Zimmerman, Zimmerman & Zimmerman and W. W. Witmeyer, for Zehring, all of Springfield.

' Judgment, of the Common Pleas was affirmed.  