2 Blackf. 324 | Ind. | 1830
The children and heirs of Nancy Oreen, deceased, by Daniel Green their father and guardian, filed, their bill in chancery; stating that John Vardiman, their grandfather, died in Kentucky, leaving a large estate real and personal, and leaving Mary Vardiman, his widow, and John T. Vardiman, Peter Vardiman, -William Vardiman, Morgan Vardiman, George W. Vardiman, and the said Nancy Green, wife of the said Daniel Green, and Elizabeth Wilson, wife of Benjamin Wilson, his heirs; that Mary Vardiman and Morgan Vardiman administered on his estate and received the whole, including two negroes, into their possession; that, afterwards, John T. and William jointly purchased the certificate for 100 acres of land', in-paying for which John T. paid 200 dollars for William, and took the certificate in his own name; that John T. died, leaving a large estate besides said land and said debt from William, before he had received his distributive share of his father’s estate, leaving the remaining heirs of John Vardiman, deceased, his lawful heirs; that William and Morgan administered on his estate; that, before the distribution of either of said estates, Peter Vardiman died, leaving the remaining heirs of John Vardiman, deceased, his lawful heirs; that George W. Vardiman administered on his estate; that Nancy Green died, leaving the complainants her lawful heirs. All the other heirs, &c. are made defendants. The bill makes general and special charges of waste of the several estates, and of a failure to pay the complainants their distributive share. One of the special charges is, that, after the death of John T., William, instead of accounting for the 200 dollars that John T. had advanced for- him, set up a pretended agreement made between him and the said John T. in his life-time, that John T. should pay William 75 dollars for five acres of land, and also assist him to clear five acres and build a cabin on it; which contract, if any such took place, the bill charges to be void, the same not being in writing.' The bill requires special answers as to the amount of each estate, and as to all the particulars of the administration.item by item; not only as to what had been received, but also as to what had been paid out; including a full disclosure of all the circumstances of the supposed agreement between John T. and William.
Mary Vardiman and Morgan Vardiman pleaded, that they
Morgan and William Vwdiman answered according to the requisitions of the bill; exhibiting, as they say, a full and minute account of the administration of the estate of John T. Vardiman, deceased, showing the amount that was left for distribution; of which, they allege they paid Daniel Green in the life-time of Nancy Green her full share. In answering that part of the bill that requires a disclosure of the transactions between John T, and William, they say that John T. paid more than his proportion of the money for the purchase of the land, and took the assignment of the certificate in his own name; that William afterwards made him some payments; that when they divided the land, John T. received about five acres more than his proportion, and also received that part on which was a spring and an improvement; that he agreed to allow William 75 dollars for the difference in the value of the two tracts, and also to perform
George W. Vardiman answered as to his administration of the estate of Peter Vardiman, deceased; from which it appears that, of the personal estate, nothing was left for distribution; that Peter left a tract of land, of which' Daniel Green, as guardian of the complainants, has received their proportion.
The complainants filed a general replication.
There is no answer by Benjamin and MUzabcth Wilson, nor does it appear that any measures were taken to obtain their answer. They seem to have been forgotten. We mention this circumstance by the way, not on account of the bearing it will have, in this case, but on account of the inconvenience such proceedings sometimes occasion, by the final disposition of a case before all the parties are before the Court. No depositions were taken. The case was finally heard on the plea, answers, replication, and exhibits; and the Circuit Court dismissed the bill without prejudice.
By agreement of the counsel on each side, the exhibits are not copied in the record, but it is admitted of record in this Court, that they are to be taken to be just as they are alleged to be in the pleadings.
The first object in this case that presents itself for our attention, is the plea of Mary and Morgan Vardiman. This plea presents a complete bar to the complainants for any claim on the estate of John Vardiman, deceased. The submission to arbitration, the award, the compliance with that award, and the acquittance, all which we understand were proved by the exhibits referred to, settle all matters in controversy, except as to the negroes. The answer, that they were afterwards ruled to
The principal question, however, presented for consideration in this case, is, how far the answer of a defendant, to which there is a replication, is to be taken as evidence of the facts stated in it? It is a general rule, that an answer is to be taken as true unless disproved by two witnesses, or by one witness and corroborating circumstances; and when the term answer is taken in its strictest sense, we believe there are no exceptions to this rule: but an answer in this sense is not what a defendant may say in his own behalf, but what he says directly responsive to the charges in the bill. Matters, however, that are set
But it must be further observed, that facts set forth in an answer and -considered as true, are to be considered according to their legal import, whether they amount to a discharge or not. Hence, it becomes necessary to examine the nature of the facts tims set up by the answer. • In this case, the transaction between John T. and William, Vardiman, respecting the tract of 'land jointly purchased by them, requires attention. There is a considerable difference between the bill and answer, as to the part which each paid of the purchase-money; but the most material difference arises out of the mann'er in which the land was divided. The answer, which agreeably to the foregoing rule we consider as true, states that in the division of the land John T. received several acres more than his proportion, and also a spring and improvements; and agreed to allow William 75 dollars as the difference-in the value of the two lots, and to perform an equal part of the labour of clearing five acres and erecting buildings on William’s part, equal to those already erected on his own part; that each took possession of his re~
The decree is affirmed with costs.