ZINK versus JERGENS

Margaret Jergens didn’t know anything about her great-uncle Phillip – and by this we mean she didn’t know she even had a great-uncle Phillip. One day she was riding in the car with her family when they pulled into someone’s driveway on the Old Troy Pike. Margaret recalls that the kids stayed in the car (one of the adults probably went into the house) and how they were told in a hushed manner that this was the house of Phillip Jergens, Jr.

We questioned Margaret about this, and learned that there was no contact between the two families, at least none she could remember. Had that occasion in the car not happened, Margaret might never have known that her great-uncle Phillip and great-aunt Mary (Abele) Jergens lived down the road from her own house. This is in contrast to the affectionate relationships among Margaret’s own family, her Uncle Harry and Aunt Bertha Jergens, her great-aunt Elizabeth (Jergens) (Logel) Heckler, and the family of John and Lizzie Logel – all of whom lived in close proximity to each other.

We used to wonder why the various branches of the Jergens family didn’t maintain closer ties with each other. Then we found evidence of legal proceedings, Zink v. Jergens, that took place in the spring of 1899.

The situation likely began when Phillip Jergens, Sr., conveyed property to two of his children, Peter J. Jergens, Sr., and Elizabeth (Jergens) Logel. This real estate transfer was mentioned in the Dayton Daily News on November 15, 1898. Phillip, Sr., was giving his land to these two children, in consideration of $1 from each to make it legal and official.

A lawsuit brought by the five other Jergens children showed up in the Dayton Herald on March 31, 1899:

Partition of Real Estate Being Sought

Helena and Mary Zink, Margaret Kleinfelder, Philip Jergens, Jr., and Joseph Jergens have brought suit against their parents, Philip and Mary Jergens, and brother and sister Peter Jergens and Elizabeth Logel, to set aside conveyance of real estate, and to have a receiver appointed to take charge of the property in question. The plaintiffs claim that undue influence has been brought to bear upon their parents by their brother and sister, who are defendants, to secure the property of the old people, and they claim that they are about to convey the property to third persons. Walter S. Kessler, Dickson & Clark, and Albert Kern, attorneys.

Helena Zink and others vs. Peter Jergens and others. Suit to set aside transfer and conveyance of real estate for an accounting of proceeds, the appointment of a receiver and for equitable relief. Plaintiffs aver that they are the children of Philip and Mary Jergens, and that Peter Jergens and Elizabeth Logel, also children of defendants, have secured possession of the real estate belonging to their parents, without consideration, thus rendering them insolvent. Plaintiffs also claim that the parents are old, feeble and weak in body and mind, and have been for over ten years. Dickson & Clark, attorneys.

Helena and Mary Zink were the Jergens sisters who married brothers Jacob Zink and Franklin Joseph Zink, respectively. Margaret Kleinfelder was the Jergens sister who married John Kleinfelder. They joined their brothers Phillip, Jr., and Joseph in this lawsuit, obviously outraged at what had happened the previous year.

On April 8th, the Dayton Herald published some lines indicating that the defendants had filed a response:

Helena Zink and others vs. Peter Jergens and others. Demurrer to petition filed.

The definition of demurrer found at Wikipedia.org says that “lawyers informally define a demurrer as a defendant saying ‘So what?’ to the pleading.”

The Hon. Alvin W. Kumler judged this case in the Montgomery county Court of Common Pleas. He ruled against the plaintiffs (“the demurrer is sustained”), adding that the plaintiffs’ only remedy was to apply to Probate Court for the appointment of a guardian to manage the interests of the aged parents.

We found a synopsis of the verdict rendered by Judge Kumler in Zink v. Jergens:

The Montgomery [Ohio] County Term Reports, Digested - May 1899, Vol. 1 Part 1 by Daniel Wilkinson Iddings [editor, Dayton, Ohio], 1900
The term reports, digested: the official digested reports, annotated, of the decisions of the Circuit, Common Pleas and Probate courts of Montgomery County, Ohio, and of the other counties of the Second Judicial District (southwestern Ohio) (Google eBook)

pages 14-15

FRAUDULENT CONVEYANCES –

1. Kumler, J. Common Pleas. (Collins, Stenographer).

(1) Children cannot maintain an action against their parents and others to set aside an alleged fraudulent conveyance made by them while old and infirm in body and mind and incapable of transacting business.

Where children of defendant bring suit against their parents and others to have a conveyance of real estate and personal property made by said parents set aside because of alleged fraud, the petition avers that defendants are old and infirm in body and mind and have not the capacity to transact business; that two years prior to the bringing of the action two children, the other defendants, fraudulently induced their said parents to convey to them most of their real estate, the deeds therefore being executed in due form; that they also gave to said children their personal property; plaintiffs further represent that defendants, the present owners, threaten to convey said property to third parties; and ask for a restraining order and that the conveyances be set aside and for a receiver; a general demurrer being filed thereto;

Held, that the facts set forth are not sufficient to constitute a cause of action, as plaintiffs have no interest in the subject matter of the suit, which would entitle them to maintain the action during the lifetime of their said parents; and the demurrer is sustained.

(2) Children are heirs apparent, without proper legal interests.

Such children are merely heirs apparent and have no such legal interest in the property as would entitle them to bring an action of this character.

(3) Their remedy is by appointment of a guardian, who shall bring the action.

The only remedy for plaintiffs is to apply to Probate Court for the appointment of a guardian for their parents on account of their alleged mental incapacity, and have the guardian, if one be appointed, bring an action to set aside the alleged fraudulent conveyances.

Jergens day in court described in newspaper

Dickson & Clark, W. S. Kessler, for plaintiffs.
Kennedy, Munger & Kennedy, for defendants.
April 22, 1899. No. 20231, Zink v. Jergens.

Philip Jergens has filed a petition for the appointment of a guardian for his parents, Philip Jergens, Sr., and Mary Jergens, who reside in Mad River township. He claims that they own valuable real estate in that vicinity, and by reason of old age and physical infirmities, they are not capable of managing their business. He continues that they have been induced to transfer their property to two of their children, wholly without consideration. Albert Kern is the attorney. A suit was brought in the Common Pleas Court a few days ago to set aside this conveyance.

So the Jergens siblings had a second day in court, their case heard by the Hon. Obed W. Irvin, probate judge. On May 9th, the Dayton Daily News printed a column on the proceedings:

AGED Couple Brought Into Court As the Result of a Quarrel Among Children, One of Whom Claims That the Others are Seeking to Defraud Him

A lawsuit around which clusters circumstances of the most pitiful sort has been demanding the attention of Judge Irvin in the probate court for the past two days. The style of the case is Phillip Jergens, Jr., against Phillip Jergens, Sr., and others, and as the title implies it is distinctly a family quarrel. The pathetic feature of the proceeding is the dragging into court of the old parents, Mr. and Mrs. Phillip Jergens, who are both over 75 years of age.

The petitioner, Phillip Jergens, Jr., asks the court to appoint a guardian for his father and mother, whom he claims are imbeciles and totally unable to manage their property interests, which is as usual the basis of law suits.

The plaintiff makes the contention that, owing to the condition of mind in which his parents are, they have been defrauded out of their property, by other children, the mode alleged to have been used being under influence of coercion over the infirmaties of the old folks.

A number of witnesses and children of the Jergens’ have testified in the case, some in favor of the appointment of a guardian and others against it. The old folks sit in court seemingly without any interest in the case.

As there is always an amusing part of every drama, the visible excitor in this instance is the apparent relish the attorneys on either side display in their evident endeavor to outdo the other in repartee.

Judge Irvin’s decision on the guardianship was published in the Dayton Herald on Thurs., June 1st:

Judge Irvin has declined to appoint a guardian for Phillip Jergens, Sr., and wife. Their son, Phillip Jergens, Jr., who sought the appointment, alleged that his parents were imbeciles and were not capable of caring for their property.

Was it a coincidence that Maggie (Jergens) Kleinfelder’s husband John dropped dead four days after the first court date, when Judge Kumler ruled against the plaintiffs? The stress of these proceedings must have taken a toll on everybody involved. And these events certainly could explain the apparent rift in the Jergens family.

We found no published account of how Judge Irvin arrived at his decision not to appoint a guardian for the elderly Jergens couple. We imagine that the judge interviewed them to determine their level of competency. Possibly he asked them why they gave their land as a gift to only two of their children, snubbing the other five.

Phillip Jergens, Sr., may have offered an explanation similar to the one that occurs to us.

Peter was the only son who continued to work that land with his father; both of them were gardeners. Daughter Elizabeth was there because she lived apart from her husband, George Logel (who died in 1910 at the Central Hospital for the Insane in Nashville, Tennessee). Peter was a widower. His wife Magdalena died in 1895, leaving him with two young sons. Elizabeth’s one surviving child, son John J. Logel, was grown and married with a child of his own by the time of all the lawsuits. Elizabeth, no longer raising her own children, became a surrogate mother to Peter’s little boys. These are the people who lived on the farm with Mary and Phillip Jergens, Sr., sharing in their life and work.

Three of the five Jergens siblings who wanted inheritance rights to their parents’ acreage were daughters whose husbands were not farmers – two of them were butchers; one was a blacksmith. Neither of the two plaintiff sons, Phillip, Jr., and Joseph, earned his living through farming. All five of the plaintiffs had living spouses (at least until John Kleinfelder died of heart failure on April 26, 1899).

Elizabeth and Peter probably agreed to care for the elderly Jergens couple in their final years, at home and on their own land. Likely Phillip, Sr., knew what he was doing when he deeded his land to these two children. He may have wanted the land to remain in the family and be farmed by his descendants. Nonetheless, it’s tragic that this family split in its affections over who deserved to inherit the parents’ property.

Maria (Steffen) Jergens passed away at age 80 in July 1899, just months after her children’s legal wrangling. In the 1900 census, Phillip Jergens, Sr., is shown to be living in the household of his grandson John Logel and wife Lizzie Logel, right next to where Peter and his sons and Elizabeth shared a house. Phillip, Sr., died at age 82 in May 1907.

The acreage along the Old Troy Pike purchased around 1855 by Phillip, Sr., remained for many years in the possession of Elizabeth and Peter, who farmed that land and lived in the dwellings thereon. Compare our annotated map on top with the excerpted 1875 atlas map beneath showing two rectangles marked “P.J.” – Phillip Jergens – in the same location. The number of black rectangles, signifying dwellings, matches the information given by Margaret Jergens about where everybody lived. Elizabeth’s son John and Peter’s two sons, Harry and Peter, Jr., later occupied this property where for years they raised their crops and families.

Another of Peter and Cecilia Jergens’ daughters once shared her observation that the Jergens property on the Old Troy Pike grew in value because of its proximity to the city of Dayton. When Phillip, Sr., bought that land in the mid‐1800s, the city had not yet expanded that far. From the few references we’ve found, Phillip Jergens, Jr.’s property, on the Old Troy Pike – near “Peach Tree Bend” along the Miami River – was further north of the city limits by another mile or two.

In a twist of fate that Phillip Jergens, Sr., could not have foreseen, his land was held in the Jergens name for a total of 100 years or more. Peter Jergens, Sr., is the only one of the seven siblings to have grandsons carrying on the surname. Fittingly, the lane that runs along the northerneastern edge of Phillip, Sr.’s homestead property is now named Jergens Road.

We don’t know when it was that Peter and Cecilia Jergens dropped by Uncle Phillip’s house, as described by their daughter Margaret. Perhaps it was in 1931, when Margaret was eleven-going-on-twelve years old. That winter Phillip and Mary (Abele) Jergens lost their only son and two of their three surviving grandchildren.

Grandson Franklyn Meyers, born in 1916 to Phillip and Mary’s daughter Ida (Jergens) Meyers and her husband Frank K. Meyers, died of pneumonia at age 14 on January 12, 1931. Then granddaughter Mary Kathryn Jergens died of septicemia at the age of 26 on February 23, 1931. Two weeks later, on March 9, 1931, Mary Kathryn’s father Phillip P. Jergens, who had chronic heart problems, died at age 49.

Peter and Cecilia might have been visiting that day to express condolences to their bereaved relatives.