43 Ind. App. 724 | Ind. Ct. App. | 1909
Lead Opinion
Action to recover a claim against the estate of Christina M. Geisel, deceased. The pomplaint averred, in substance, that appellee when a child was taken into the home and raised in the family of John and Christina M. Geisel; that she was regarded, treated, and named in the last will of said John Geisel, as an adopted daughter; that said will, which is made a part of the complaint, provided that his wife (said Christina) should pay to said claimant the sum of $500 when claimant arrived at the age of twenty-one years, provided claimant was good and kind to his wife, as a daughter should be; that said John died July 31, 1890, the owner of personal and real property aggregating $8,000; that said will was duly probated in July, 1890; that after the death of said John Geisel the claimant married; that she became twenty-one years of age on December 2, 1899; that she was at all times, good and kind to said decedent, as a daughter should be, and performed all the conditions required on her part to be performed under the provisions of said will; that after the death of said John, his widow, the decedent, took the exclusive possession, control and ownership of all the estate, real and personal, paid his indebtedness, and repeatedly promised and intended to pay claimant said $500 bequeathed to her; that decedent died October 31, 1906, testate and the owner of real and personal property bequeathed and devised to her by the will of said John Geisel; that she devised and bequeathed said property and made no provision for the payment of said legacy to claimant; that at her death said legacy was long past due. The issues were
The will in question provides: First, for the payment of all the just debts and funeral expenses of the testator; next, it devises and bequeaths to his wife, Christina Mary Geisel, “all the rest and residue of my estate, real, personal and mixed, after my just debts, funeral expenses, etc., are paid of which I shall die seized and possessed, or to which I shall be entitled at my decease.” Following that is the clause in controversy, which reads as follows: “My will is that my beloved wife pay to Mary Catherine Geisel, an adopted daughter, the sum of $500 when she arrives at the age of twenty-one years old, providing she, Mary Catherine, is good and kind to my wife, as a daughter should be, and if not obedient, my will is that she shall not receive the $500 herein named.” This devise is subject only to the provision
The case of Murphy v. Carlin (1892), 113 Mo. 112, 20 S. W. 786, 35 Am. St. 699, is analogous in its facts to the ease at bar, and the questions to be decided are much the same. See, also, Noe v. Kern (1887), 93 Mo. 367, 6 S. W. 239, 3 Am. St. 544. In the ease of Colton v. Colton (1888), 127 U. S. 300, 8 Sup. Ct. 1164, 32 L. Ed. 138, the will of the testator contained the following provisions: “I give and bequeath to my said wife, Ellen M. Colton, all of the estate, real and personal, of which I shall die seized or possessed or entitled to. I recommend to her the care and protection of my mother and sister, and request her to make such, gift and provision for them as in her judgment will be best. * * * I hereby appoint my said wife to be the executrix of this my last will and testament, and desire that no bonds be required of her for the performance of any of her duties as such executrix.” Held, that the complainants, mother and sister, took under the will a beneficial interest out of the estate given to the wife, to the extent of a permanent provision for them during their respective lives, suitable and sufficient for their care and protection, etc.
Judgment affirmed.
Dissenting Opinion
The appellee filed a claim in the court below against the estate of Christina Geisel, seeking to recover a personal judgment against the estate of the decedent on a liability incurred by the decedent in accepting the provisions made in her behalf by the will of her deceased husband, and taking possession of the property therein devised to her. It is in no sense an action to enforce a trust in the property the decedent received under her husband’s will, but purely an action at law seeking a personal judgment against her estate.
The question to be decided is, Does the six-year statute of limitations apply to the action ? In my judgment it does.
The basis of the liability here sought to be enforced is not the will of John Geisel, which directed the widow to pay the appellee $500. No word or act of John Geisel could create a personal liability against his wife. It is her acts, her words, and her conduct that render her and her estate personally liable to the appellee for the payment of the money directed by John Geisel to be paid to her. It is the fact averred in the complaint, that the decedent accepted the benefits of the will of her husband, and under it took possession of the property devised to her, that is the gist of the appellee’s case against the estate. Prom these facts the law implies a contract that Christina Geisel shall pay appellee the $500. Burch v. Burch (1875), 52 Ind. 136; Porter v. Jackson (1884), 95 Ind. 210, 48 Am. Rep. 704; Hayes v. Sykes (1889), 120 Ind. 180; Watt v. Pittman (1890), 125 Ind. 168; Schnell v. Schnell (1907), 39 Ind. App. 556. The will in this case is but an incident to the appellee’s cause of action sued on. The question presented is, to my mind, precisely analogous to that presented where a purchaser of real estate takes the same subject to a mortgage given to secure the payment of a promissory note, which the purchaser verbally agrees to pay. In an action to foreclose the mortgage
The precise question here presented has been decided adversely to the contention of appellee in the case of Stringer v. Stephens’ Estate (1906), 146 Mich. 181, 109 N. W. 269, 8 L. R. A. (N. S.) 393,117 Am. St. 620. In that case a claim was presented against the estate of a devisee of real estate, who took the devise upon the condition, among other -things, that he was to pay his mother $100 per annum, which, by the express terms of the will, was made a lien on the land. "What was sought and obtained in that case, as in this, was a personal judgment against the estate for the sum due the legatee. The question of the statute of limitations was raised there, as it is here. The court held, and properly so, that, the action being based on the implied promise of the decedent to pay the legacy, the same rule regarding the limitation of actions would apply as applies to any other action to recover money founded on an implied contract. The same rule is laid down in Wood, Limitations (3d ed.), §35. See, also, Percy v. Cockrill (1893), 53 Fed. 872, 4 C. C. A. 73; Millington v. Hill, Fontaine & Co. (1886), 47 Ark. 301, 1 S. W. 547; Zweigle v. Hohman (1894), 27 N. Y. Supp. 111, 75 Hun 377; Loder v. Hatfield (1877), 71 N. Y. 92; American Bible Soc. v. Habard (1868), 41 N. Y. 619, 51 Barb. 552; Elter v. Greenawalt (1881), 98 Pa. St. 422; Perkins v. Cartmell (1848), 4 Harr. (Del.) 270, 42 Am. Dec. 753. The only case we have been able to find that in any manner conflicts with this long line of authorities is the case of Wilson v. Towle (1848), 19 N. H. 244. The court in that case, contrary to all the authorities in this and every other state in the Union, and, to my mind, to the reason and logic of the law, seems to
I think the finding and judgment should have been in favor of the appellant, and I cannot concur in the affirmance of the judgment.
Rehearing
On Petition for Rehearing.
Petition overruled.