31 Ind. App. 384 | Ind. Ct. App. | 1903
Appellant filed a claim against the estate of appellee’s decedent, averring, in substance: That in 1880 she was married to Edward A. Kelsey, a grandson of decedent Aaron Eoust, and lived with him as his wife until his death on the 14th day of February, 1886, leaving appellant as his only heir. Edward was the only child and heir of Catherine Kelsey, who died in November, 1864, prior to the death of her father, Aaron Eoust, leaving Edward, who was about eighteen months old, whom decedent took into and maintained in his family until ho was about sis years old,. regarding him as a son, and declaring and intending that he should have a child’s portion "of his estate. At the time of her marriage appellant was given $50 in cash and $150 in personal property by her father. In the fall of 1884 her husband became sick of consumption, and died February 14, 1886. When he became sick he was without any money or property of any kind or means of support, and was unable to work or in any way support himself or appellant, and was soon confined to the house and to his bed, and so continued until his death. In the spring of 1885 appellant had the personal property given her by her father, and some $200 or $300 in other property her father had given her. Aaron Foust frequently visited Kelsey while sick, and often requested appellant to provide for him, and to furnish him out of her means with provisions, fuel, and medicines, and pay the rent of the house, and during the last few weeks of Edward’s life to provide attendants for him, and promised
Both instruments were on that day delivered| to appellant’s husband. That appellant, induced by these promises, expended her property and money in the support of her husband during the year of 1885 and until the time of his death, and in so doing expended all of-her property ex
The rule of the common law that the husband and wife could not deal together rests upon the theory that in legal contemplation the husband and wife are one person, and not upon the theory that the wife is under a legal disability. This rule still prevails except where the legislature has expressly modified or annulled it, and the question is not whether disabilities have been removed, but whether the rule has been annulled. The common law status of husband and wife very plainly denies to both the husband and wife a right to compensation for services rendered by either for the benefit of the other. It is quite true that the common law rights and duties growing out of the marital contract have been very materially modified in many respects by statutes. And while the enlightened policy of modern legislation has given a married woman certain rights and powers denied her by the common law, yet these statutory innovations upon the common law have not gone so far as to permit unrestrained commercial dealings between husband and wife. The statutory right of the wife to recover for her own services does not change the relation between husband and wife nor does it exonerate the wife from the performance of any proper services for the benefit of the husband. It is the duty of husband and wife to
Had appellant and her husband entered into a contract that she should be reimbursed out of his estate for money of her own expended for his support, the contract coulcTuot have been enforced. Corcoran v. Corcoran, 119 Ind. 138, 4 L. R. A. 782, 12 Am. St. 390.
If it be admitted that it was appellant’s legal duty as wife to use her own property and means to furnish her husband with the necessaries of life, it follows that a promise to reimburse her is without consideration. Shortle v. Terre Haute, etc., R. Co., 131 Ind. 338; Spencer v. McLean, 20 Ind. App. 626, 67 Am. St. 271.
But, if it be admitted that it was her legal duty to use her own means for his support, it would follow that her estate must pay a claim of a third person furnishing such support. Ho-wever, appellant’s claim is not for any services rendered her sick husband. The consideration for the promise made for her benefit was not the performance of any wifely duties. .Nor is it a question as to the moral and social obligations of the wife to care for and support her sick husband. The extent to which a wife will observe such obligations beyond the discharge of the wifely duties imposed by the marriage relation is a question she must determine for herself. Her personal property, which the common law gave to the husband upon marriage, is now, by statute, hers absolutely. She.may do with it as she might do if unmarried. There was no common law
The instrument sued on is in writing, signed by the decedent and contains a promise by the decedent to pay the claimant a sum of money from his estate if she be living at the time of his death. She avers the consideration for this promise. The decedent entertained for his grandson the love and affection of a father, and desired that he be properly provided for in his last sickness. He contracted for the performance of certain acts, and placed an estimate upon their value to him. Hothing is averred to authorize us to disturb that estimate. We can not substitute our judgment for his. The decedent obtained all he contracted for, and the claimant, relying upon the promise as made, performed the conditions agreed upon. See Wolford v. Powers, 85 Ind. 294, 44 Am. Rep. 16, and cases cited; Price v. Jones, 105 Ind. 543, 55 Am. Rep. 230; Mullen v. Hawkins, 141 Ind. 363; Farber v. National, etc., Co., 140 Ind. 54; Ditmar v. West, 7 Ind. App. 637; Shover v. Myrick, 4 Ind. App. 7.
The claim is sufficient against a demurrer. Judgment reversed.