DISSENTING OPINION ON PETITION FOR REHEARING The appellees' petition for a rehearing together with their brief in support thereof have convinced me that this appeal should be reheard and the judgment affirmed.
It must be conceded that no portion of an estate by entireties passes to a trustee in bankruptcy of either of the spouses as an asset of the estate of the bankrupt. This refers of course to tenancies of that nature which are legitimately created and not in fraud of the creditors of either spouse. Fraud vitiates any transaction upon which it lays its hands and there is nothing so sacred and inviolable about estates by entireties that they are placed beyond the reach of that principle of law. The appellees' entire case is built around the concept that when a debtor joins with his wife in the purchase of real estate and they take title thereto as tenants by entireties, the interest of the debtor in such estate, to the extent of his financial contribution thereto, is subject to execution by the debtor's creditors, provided he had, at the time of such conveyance, and still has no other property, subject to execution, sufficient to pay his debts. That such concept is sound cannot be doubted when considered in the light of the Supreme Court's decision in Probst v. Probst (1942), 220 Ind. 200, 41 N.E.2d 608.
In the trial of this case the court found the facts specially and stated its conclusions of law thereon and in our decision of January 29, 1948, 76 N.E.2d 856, we held that the facts so found are sufficient to sustain the court's conclusions of law. In so holding I think we were clearly right. We also held that all facts found by the court were sustained by sufficient evidence except *Page 211 "Finding No. 4." which we concluded was unsupported. In this I believe we were in error. "Finding No. 4." constitutes the very heart of the appellees' case. Without it they must fail and with it they must recover in the absence of other prejudicial error, of which we found none in our initial consideration of the cause. Thus in view of its importance I repeat the finding herewith: "That the said defendants, George E. Vonville and Margaret Vonville, each contributed approximately equal sums to the purchase of said farm, said George E. Vonville contributing thereto his own funds in the approximate sum of $1,500; that at the time of said purchase and conveyance, the defendant George E. Vonville was indebted to the Fidelity Deposit Company of Maryland, a corporation, in the sum of $11, 036.37, with interest thereon at the rate of six percent per annum from the 30th day of March, 1936, which indebtedness was later reduced to a judgment as above described; that at the time of said conveyance and continuously ever since, the defendant, George E. Vonville, had no other property subject to execution out of which the claim of the Fidelity Deposit Company of Maryland, a corporation, could or can be collected."
In our initial opinion we repudiated this finding only so far as it states that the appellants "each contributed approximately equal sums to the purchase of said farm, said George E. Vonville contributing thereto his own funds in the approximate sum of $1,500." In support of the finding in that particular the appellees call our attention to the following testimony of George E. Vonville:
"Q. Mr. Vonville, when you purchased that farm the money that you used to purchase it was contributed by both you and your wife was is not?
"A. That is right; we sold a piece; sold a piece of property. *Page 212
"Q. And what piece of property was that?
"A. On May Street in Hammond.
"Q. I say you and your wife each contributed 50-50 per cent as a result of the sale of that May Street property?
"A. Yes."
In the court's opinion on the petition for a rehearing this testimony is disposed of with the statement that it was not "substantial evidence with probative value to support the burden which is on the appellee in this case." I think the trial court, considering all the evidence in the case, might justifiably have reached that conclusion but the testimony in question evidently did not so impress him. It is the testimony of a party to the litigation against his own interest, pertinent, direct and to the point, and to characterize it as unsubstantial and of no probative value, it seems to me, involves the process of weighing it against all other facts and circumstances in the case and in the end substituting our estimate of its value for that of the trial court. This the Supreme Court, as late as February 2, 1948, in Wright v. Peabody Coal Co. (1948), 225 Ind. 679,77 N.E.2d 116, has said we cannot do. A learned dissent by Gilkinson, J., in the case just cited, justifies the repudiation of certain testimony upon which the Industrial Board predicated an award but the testimony involved was the opinions of certain experts based on mere conjecture, surmise or guess and, resting on no substantial factual foundation as the judge points out, such opinions had no probative value whatever. Such was not the prevailing opinion of the court but, accepting its reasoning for present application, we are faced with no such situation here. The testimony in question is the direct, unequivocal statement of facts concerning a transaction of which no one was in a position to know *Page 213 more about than the witness. Other facts and circumstances in the case may weaken it perhaps — may even preponderate against it — but that was for the trial court to determine and not for us.
For the reasons stated I cannot join with the majority in characterizing this evidence as unsubstantial and having no probative value and, unless it can be so disposed of, it sustains "Finding No. 4." and the judgment must be affirmed.
NOTE. — Reported in 77 N.E.2d 759.