31 Ind. App. 397 | Ind. Ct. App. | 1903
Appellee’s claim was in two paragraphs. The first contained a hill of particulars as follows: The estate of Plelen J. Tate to Irene Allison, Dr. To services from Pebruary 25, 1882, to December 18, 1889, as companion, housekeeper, cook, and nurse, 406 weeks, at $25 per week, $10,150. To services from December 18, 1889, to June 26, 1900, as companion, cook, adviser, housekeeper, and nurse, 547 weeks, at $10 per week, $5,470. Total $15,620. In the second, it was substantially averred that the appellee on Pebruary 25, 1882, entered the employment of Helen J. Tate under an agreement that if she continued in such employment until such time as she should marry, and faithfully perform her duties thereunder, she should receive by will or otherwise one-half the estate of which Mrs. Tate should die possessed; that if she remained in said employment until Mrs. Tate’s death, she should receive by will or otherwise, the entire estate; that on December 18, 1889, appellee intending soon to be married
The evidence shows that in November, 1881, appellee, then fifteen years old, went to 'work in the Tate family as a domestic at $3 per week. The Tates then lived on
Mrs. Tate left at her death a will, containing thirty-three specific items, the thirty-fourth one naming her executors. By this will she disposed of all her property, inventoried at $54,041. The fifteenth item thereof was as follows: I give and bequeath to Irene Allison, wife of James Allison, all the furniture, carpets, pictures, ornaments, utensils, and other household articles of every description in my residence and not otherwise in this will specifically
The general doctrine of satisfaction by legacy is that when one, being indebted to another, gives him by will a sum of money as great or greater than the debt, 'without saying anything about it, this shall nevertheless be a satisfaction of the debt. Pomeroy, Eq. Jurisp. (2d ed.), §527. The exceptions to this rule are stated by appellee’s learned counsel, and are so numerous as practically to make the rule an exception to the exceptions. In the case at bar the general doctrine is not applicable. The distinction and the rule that is applicable are stated by Mr. Pomeroy as follows: “The general doctrine as to a presumption of satisfaction, and the limitations upon it, described in the foregoing paragraphs, are based upon the bare facts of a debt and a legacy, upon their respective natures, and upon the relative situation of the testator and the creditor-legatee ; and they assume that there is no express language in the will, accompanying the legacy, and declaring its object and effect, or no previous arrangement between the parties stamping a special character upon the testamentary gift. It is therefore well settled that if one person renders any services to another upon an understanding or arrangement that he is to be remunerated therefor by a testamentary benefit, and the party receiving the services afterwards makes a bequest or devise in his will in favor of
That the agreement was to pay appellee by a testamentary provision is asserted by her. A testamentary provision for her has been made. She has availed herself of it. Had the will contained a recital that the bequest made was intended to be in full for all claims or debts, accepting the legacy would amount to a satisfaction of the claim. Rose v. Rose, 7 Barb. 174. The intention that it shall be so taken appears in this case both upon the face of the will and from the facts exhibited in connection therewith. If the legacies were not thus intended, the testator is placed in the position of attempting the impossible — of making bequests to various persons, knowing that appellee held an unsatisfied contract entitling her to the entire estate. Deficiency of assets requires that a legacy be construed as a satisfaction. Toller, Executors, 338; 2 Williams, Ex
The conversation testified to by Mrs. Billips, and also relied upon as establishing appellee’s contract, does not tend to show that either party to it understood that upon her marriage appellee became entitled to one-half of the estate of Mrs. Tate at her death. In view of the verdict, it must be at this stage of the case taken as established that such contract did then exist, and that at the death of Mrs. Tate, appellee was entitled to the entire estate. The evidence nevertheless tends to show that such liability was denied by Mrs. Tate, or perhaps it is better to say that it was not in anywise admitted. That the legacy could be in addition to what appellee was by contract entitled to recover is impossible. The situation occupied by Mrs. Tate when the will was made, and her attitude toward the contract, and the terms of the contract, negative the idea that the legacy given was intended to be in addition to the contract obligation; and the appellee, having elected to take such legacy, can not be permitted thereafter to claim additional compensation. The .contract being within the statute of frauds was not enforcible. Wallace v. Long, 105 Ind. 522, 531, 55 Am. Rep. 222.
The action is brought to recover the value of what it is alleged was done by one party to it in reliance upon the contract, the other party haying refused to perform. Wallace v. Long, supra, 526. The making of such contract and its violation by Mrs. Tate are averred in the complaint. The allegation as to its violation was not well made, but assuming it to be sufficient, it follows that proof of such facts by the appellee in the first instance were essential. No plea of estoppel was therefore necessary to enable the appellants to take advantage of the satisfaction of said contract, they thereby negativing that which it devolved upon the appellee to prove. §380 Burns 1901.