59 Ind. App. 85 | Ind. Ct. App. | 1915
William Fender, administrator with the will annexed of the estate of Caroline A. Miller, deceased, and Walker Miller, guardian of Edward A. Miller, a person of unsound mind, entered into a contract adjusting certain claims and differences growing out of their trust estates, respectively. This appeal is from an order and judgment of the lower court confirming the contract of settlement and adjustment.
Caroline A. Miller departed this life December 13, 1910; she left no children or their descendants, no father or mother surviving her, but left surviving her Edward A. Miller, her husband, and brothers and sisters, whom she made beneficiaries in her will. Items Nos. 3 and 4 of the last will and testament of Caroline A. Miller are as follows:
“Item 3. Whereas my present husband is indebted to me for money advanced and mortgage notes executed to me on the last day of March, 1895, in the sum of $900, drawing 8 per cent per annum from date until paid, and*88 money advanced at different dates in the sum of $1,152.28. * * # Item 4. It is my will that as long as my present husband lives he is to have the use of the above amount of money for his support, but at his decease the unexpended balance to be accounted for to my heirs at law.”
The terms of the settlement between the administrator and guardian heretofore referred to were reduced to writing and signed by William Pender as administrator of the estate of Caroline Á. Miller, and Walker Miller as guardian of Edward A. Miller, a person of unsound mind. The part of the contract that is material to the questions presented for review is:
“Now, therefore, to avoid litigation and expense of administration and to save said estate from waste, it is hereby agreed, by and between the said administrator and the said guardian that all differences existing between them as to their respective rights in the assets of said estate are hereby adjusted, settled and compromised on the following terms and conditions, to wit: The said guardian agrees to take in full interest of all his rights, title and interest and claim, in and to the assets of said estate, two notes, one being in the sum of $1,000 together with accrued interest thereon and signed by Philip Coble, and one being in the sum of $300 with accrued interest thereon and signed by Walter S. Duenweg and others, and the balance to be paid in cash in such sum that the total of these notes, together with the accrued interest thereon to the date of this contract, and the said sum paid in cash shall equal the sum of $1,500, the same being the amount agreed upon between said parties to be paid by said administrator to said guardian as the full interest of said Edward A. Miller, in the assets of said estate of Caroline A. Miller, deceased. It is provided that said guardian shall pay to said estate of Caroline A. Miller, his pro rata share of any debts that were contracted by Caroline A. Miller prior to her marriage with said Edward A. Miller, and which may be filed against her estate, and which may be legally enforced against the same, and the said administrator hereby agrees to deliver the two notes above described and the balance in cash, to wit: The sum of $- dollars upon the approval of this contract and settle*89 ment by the probate judge of the Yigo Circuit Court of Yigo County, Indiana, and the approval of the same by the judge of the Owen Circuit' Court of Owen County, Indiana. It is further agreed by and between the parties that this contract and settlement shall be reported to the respective courts of said respective parties doing probate business in the respective counties, and that the same shall be entered of record and an order of said court made, making said settlement firm and effectual between the parties.”
On March 24, 1911, by proper petition the above contract was presented to the Yigo Circuit Court asking advice of the court and an order directing the guardian to elect for his ward to take under the law instead of under the will of Caroline A. Miller, deceased. The court ordered the guardian to file his election to take under the law instead of under the will and approved and confirmed the acts of the guardian as to the contract of settlement. On March 27, 1911, a petition was filed in the Owen Circuit Court by appellant, administrator of the estate of Caroline A. Miller, deceased, setting forth the condition of the estate, and that a controversy existed as to. the interest that Edward A. Miller, who was under guardianship, should take in his wife’s estate, and to avoid litigation a contract of settlement had been entered into between the administrator and the guardian and the same was asked to be confirmed by the court. The relatives of Edward A. Miller appeared to this petition and objected to any action being taken until they could file proper proceedings in the Yigo Circuit Court to remove the guardian, and have a guardian appointed in the Owen Circuit Court, where the said Edward A. Miller was a resident. "While the above petition was pending for confirmation by the court, and the one in the Yigo Circuit Court for the removal of the guardian, Edward A. Miller died. Immediately after his death, and before letters of administration were issued to appellee to administer upon the estate of Edward A. Miller, deceased, appellant caused to be entered upon the docket of the Owen Circuit Court
Before any action had been taken by the Owen Circuit Court as to the granting or dismissing of the petition of William Pender, administrator of the estate of Caroline A. Miller, praying for the confirmation of the contract of settlement, appellee was appointed administrator of the estate of Edward A. Miller, and filed his petition asking the Owen Circuit Court to confirm the contract as theretofore prayed for by appellant. To this petition appellant addressed a plea in abatement, to which a demurrer was sustained. In addition to an'answer of general denial, appellant filed eleven paragraphs of affirmative answer; to all of which, except the sixth, which was an answer of no consideration, demurrers were filed and sustained. A reply in general denial to the sixth paragraph of answer closed the issues. Trial was had in the Morgan Circuit Court, where the cause had been venued and a finding and judgment for appellee confirming the contract of settlement; from the finding and judgment thus entered, appellant prosecutes this appeal, and assigns as error: (1) error in sustaining appellant’s demurrer to appellee’s separate plea in abatement; (2) error in overruling appellant’s demurrer to appellee’s petition; (3) error in sustaining appellee’s demurrers to paragraphs 2, 3, 4, 5, 7, 8, 9, 10, 11 and 12 of the answer of appellant; (4) error in overruling appellant’s motion for a new trial.
Note. — Reported in 108 N. E. 971. As to when compromise and settlement is enforceable on payment of part of a demand, see 100' Am. St. 412, 429. On the compromise by personal representative of claim due estate, see 14 L. R. A. 414. See, also, under (1) 31 Cyc. 319; (2, 6) 31 Cyc. 358; (3) 8 Cyc. 505; (4) 18 Cyc. 580; 21 Cyc. 74; (7) 31 Cyc. 517; (8) 14 Cyc. 410; (9) 3 Cyc. 325.