30 Ind. 313 | Ind. | 1868
Sampson S. Reed filed a claim against the estate of Stephen Reed in the clerk’s office of the court below, on the 28th of August, 1867. The claim was not admitted by the administrator, and was therefore transferred to the issue docket, at the January term, 1868.
The plaintiff filed an amended complaint, in which it is averred that, by virtue of the last will and testament of
The will bears date 23d of September, 1834, and was probated in Kentucky, in August, 1835.
The defendant demurred to the complaint, which was overruled, and he excepted.
The defendant answered: 1. The general denial. 2. That the cause of action did not accrue within six years before the commencement of the action or within six years before the death of the intestate, Stephen Reed. 3. That the cause of action did not accrue within fifteen years before the commencement of this suit. 4. Payment. 5. That after the plaintiff arrived at twenty-one years of age the said Stephen Reed made advancements to his son Sampson, in money, property, and use of farm, use of saw mill, and timber from farm, to the full amount of the two hundred dollars.
The plaintiff replied: 1. The general denial. 2. That the intestate did, within six years prior to his death, acknowledge his indebtedness and promise to pay the same. 3. That the cause of action did accrue within fifteen years.
William Reed, brother of the plaintiff, testified that Stephen Reed had admitted-to him that he had received the ' two hundred dollars specified in the will, and that it was not to be paid to Sampson, the plaintiff, until after his, the father’s, death; and then he was to have it out of his estate. It was in evidence that the plaintiff'was forty-two years of. age at the time of the trial.
It is claimed that the bequest created no trust in favor of the appellee, and therefore the complaint was bad on demurrer, and this presents the first question in the case.
In Ford v. Fowler, 3 Beav. 146, a bequest to a daughter, A., the wife of B., of 10,000/., payable six months after the testator’s decease, with the following words added: “I recommend to my said daughter and her said husband, that they do forthwith settle and assure the said sum of 10,000/., together, also, with such sum of money of his own as the said B. shall choose, for the benefit of my said daughter A. and her children,” was held to be a trust for the children after the decease of A., so that the legacy did not lapse by the death of A. in the testator’s lifetime.
In Malim v. Keighley, 2 Ves. 333, the Master of the
It is claimed in the case at bar that it was not the intention of the testator that the two hundred dollars should go to the grandson absolutely, on his arriving at the age of twenty-one years, but that it was only to go to him in case his father made advances to him.
In Ford v. Fowler, supra, the Master of the Rolls says: “ It was argued that the subject was uncertain, because the testator recommended that, besides the 10,000 l. of his own, something of the husband’s to be settled also; but there being certainty as to that which was in the testator’s power, the trust as to this does not fail because the testator expressed a wish as to something over which he had no power.. His wish or recommendation that the husband should settle something of his own is perfectly consistent with his wish or recommendation that the whole of the 10,000 l. should be settled, whether the husband settled anything or not.”
So in the case under consideration, it is equally clear that the wish of the testator that the two hundred dollars should go -to the grandson on his coming of age was consistent with the wish that it should be added to such sums as the father might elect to advance to his son.
The court below committed no error in overruling the demurrer to the complaint.
The appellee was not a competent -witness unless called by the adverse party, or the court trying the case. See Malady v. McEnary, 30 Ind. 273.
It is argued that this was a harmless error; that other witnesses testified to the same facts. The evidence was material, and we cannot sa.y what weight was given to it in the court below. The appellee, by offering himself as a witness on his own behalf, treated the testimony as mate
The judgment is reversed, with costs, and the cause remanded, with directions to grant a new trial, and for further proceedings.