48 Ind. App. 351 | Ind. Ct. App. | 1911
This is an appeal from a judgment of the Probate Court of Marion County, founded on a claim filed by appellant against appellee. Appellee is the executor of the
To this claim, in addition to the answer that the law puts in, appellee filed an answer in set-off, alleging, in substance, that the estate of Eliza J. Gray, at the time of her death, was indebted to Pierre Gray in the sum of $6,240; that on February 14, 1905, and from that time until the death of Pierre Gray, on December 25, 1907, Eliza J. Gray, Pierre Gray and Bayard Gray were the equal owners in fee simple of a residence property on North Pennsylvania street, in Indianapolis, Indiana, and that Eliza J. Gray resided therein with Pierre Gray and his wife; that a contract was entered into whereby Eliza J. Gray, Pierre Gray and Bayard Gray each was to pay one-third of the expenses of maintaining the property; that after said contract was entered into, Eliza J. Gray continued to live in the residence property, and that all the expenses heretofore referred to were paid by Pierre Gray, amounting in the aggregate to about $2,955; that Eliza
The cause was submitted to the court without the intervention of a jury, the evidence was heard, and a general finding rendered against the claimant, and also against appellee on the set-off. A motion for a new trial was filed by the claimant, which was overruled, and judgment was entered in the court below against the estate of Eliza J. Gray on the claim filed by the administrator of her estate, and also against the estate of Pierre Gray on the set-off filed by his executor. Prom this judgment, the administrator of the estate of Eliza J. Gray appealed to this court.
Before considering any of the questions presented, it is well to state concisely what points were in issue at the trial. Under the issues as formed, any evidence could have been offered that would tend to defeat the claim on any ground, or to prove the set-off pleaded. The evidence, however, was directed to only three questions of fact, namely, the statute of limitations, the question of advancement, and the facts pleaded by way of set-off.
There was also evidence from which the trial court could infer that the money referred to by this witness in her testimony was the same as that evidenced by the notes in suit, and that the notes were executed as evidence of an advancement and not of a loan. It is true that a note standing alone would authorize the presumption that it was evidence of an indebtedness from the maker to the payee, but this presumption may be rebutted. An advancement of money or other property from a parent to a child, as a general rule, is a question of intention, and this intention may be shown by the declarations of the parent on the subject, made at or near the time when the money or other property was turned over to the child. There is evidence in the record to sustain the judgment of the trial court on this issue.' It is not the province of this court to weigh conflicting evidence, and, therefore, we cannot disturb the judgment of the court below, on the ground -ftiat the decision is not sustained by the evidence.
We find no available error in the record. Judgment affirmed.