69 Ind. 203 | Ind. | 1879
This was a suit by the appellant’s relatrix, against the appellees, on an executor’s bond executed by them to the. State of Indiana, on the 30th day of March, 1869, in the penal sum of nine thousand dollars, and conditioned that the appellee Corydon W. Crossley should faithfully discharge the duties of his trust, as executor of the last will and testament of Conrad Crossley, deceased, according to law. In her complaint on said bond, the appellant’s relatrix alleged, in substance, inter alia, that the last will and testament of said Conrad Crossley, deceased, on the day last named, was duly admitted to probate in the proper court of Madison county, Indiana, and that on the same day the appellee Corydon W. Crossley was duly appointed by said court as the executor of said will, and duly qualified as such executor and took upon himself the execution of said will; that the appellant’s relatrix was one of the children of said Conrad Crossley, and the person referred to in the fourth item of said will, as Sarah Brown ; that, by said fourth item of said will, the testator bequeathed to the relatrix. $900 ; that the said executor, Corydon W. Crossley, had not faithfully discharged the duties of his said trust, in this, to wit:
1. That, although after he became such executor, to wit, on the 30th day of March, 1869, there came into his hands the sum of $5,000, and solvent notes to the amount and of the value of $5,000, which were all collected by him, all of said money and notes were assets of said testator’s estate, out of which it was the duty of said executor to pay the relatrix her said legacy of $900, and interest thereon in the sum of $100 ; yet that the said executor had failed and refused to pay the relatrix her said legacy and
2. And in this, that the said testator, at the time of his death, was the owner of personal property to the amouut of $10,000, which it was the duty of said executor, under the said will, to take into his possession, and inventory and safely keep the same for the benefit of the relatrix, who had an interest therein, by virtue of said will and the statute of descents, in the sum of $1,000 ; yet the relatrix said that the said executor, disregarding his said trust, had failed and refused to take charge of said personal property as assets of said estate, and to make and file an inventory of the same, and had converted the same to his own use, and suffered the same to be sold, and lost and destroyed; Avhereby the said estate had been damaged in the sum of $10,000.00, and the relatrix in the sum of $500.00, and by means whereof the relatrix had been damaged in the sum of $1,000.00, which remained unpaid. Wherefore, etc.
To this complaint the appellees answered in five paragraphs, of which the first was a general denial, and each of the other paragraphs stated special matters by way of defence. The appellant’s relatrix demurred, for the want of facts, to each of the affirmative paragraphs of answer, which demurrers were overruled to the third paragraph, and were sustained to the second, fourth and fifth paragraphs of said answer. To the third paragraph of answer the appellant’s relatrix replied by a general denial.
This action was commenced in the Madison Circuit Court; but after it had been put at issue as herein stated, on the application of the relatrix, the veuue thereof was changed to the Hancock Circuit .Court.
In this latter court, the issues joined were tried by a jury, and a verdict was returned for the appellees, the defendants below. The motion of the appellant’s relatrix
In this court the only error assigned by the appellant’s relatrix is the decision of the circuit court in overruling her motion for a new trial. In this motion, she assigned the following causes for such new trial :
1. The verdict of the jury was not sustained by sufficient evidence;
2. The verdict of the jury was contrary to law ;•
3. The verdict was contrary to the law and the evidence ;
4. Error of the court in giving, of its own motion, each of its instructions, Nos. 1, 2 and 3;
5. Error of the court in permitting the appellees, over the objections of the relatrix, to read in evidence what purported to have been a former will of the testator, mentioned in the evidence as “ Exhibit C ; ”
6. Error of the court in refusing to require the jury to answer the interrogatory put by the appellant’s relatrix, and require them to return their answer thereto with their general verdict; and,
7. Error of the court in refusing to give the jury instruction numbered one (1).
Before considering any of the questions arising under the alleged error of the court, in overruling the motion of the appellant’s relatrix for a new trial, it' is proper that we should give the substance of the third paragraph of the appellees’ answer. In this third paragraph, the appellees fully stated the facts which constituted their supposed defence to this action. They admitted therein, that Conrad Crossley had died testate, as alleged in the complaint ; that his last will and testament had been duly admitted to probate in the Madison Circuit Court; that the appellee Corydon "W. Crossley had been duly appointed and qualified as executor, and had taken upon himself the
We pass now to the consideration of the several questions presented for our decision by the learned counsel of the relatrix, in their able and exhaustive brief of this cause ; and these questions we will take up and pass upon, as nearly as we can, in the same order in which counsel have presented them. It is earnestly insisted by the counsel of relatrix, that the verdict of the jury was not sustained by sufficient evidence; and, upon this point, we think they are fully supported by the record. It was shown by the evidence, that the testator, Conrad Crossley, by the fourth item of his last will, had bequeathed to the relatrix a legacy of nine hundred dollars. Of this legacy it was not claimed by the appellees, and the evidence did not show, that the executor, Corydon W. Crossley, or any one iu his behalf, had ever paid the relatrix any more in the aggregate than the sum of $800.00. Of the residue of said legacy, to wit, the sum of $100.00, it
“ My father never paid me a cent of money in his life, lie gave me some money, Sunday evening, when I was leaving his house. He handed me some money, and said he, ‘ Sade,’ ór ‘ Sallie, take this,’ and I took it and thanked him for it, and he said I was welcome. I took it home and counted it, and there was just $100.00 of it. I think this was the latter part of the winter or first of spring, 1867. I don’t know whether or not the will was then made. He never said anything to me about the will. There was no person present but him and me. I never heard my father mention a will. He has, in his time, given me $200.00. I don’t know when it was that he gave me the first $100.00. I can’t say how long between the two one-hundred-dollar receipts. I would say fully a year and probably longer. These two one hundred dollars are all he ever gave me of any amount. There was never anything said between me and my father after he paid me the last $100.00, about it.” On cross-examination, she further testified: “ I went Sunday morning to see father, and Sunday evening he was lying on the lounge, and he gave mo the money and did not even say how much it was. I have given all he said.”
It seems to us that the one hundred dollars given the reiatrix by the testator, in his lifetime, under this evidence, can not be regarded as an ademption of a like amount of her legacy, under his will, for the reason that the evidence utterly fails to show that the tes
We think that the verdict of the jury, in this case, was not sustained by the evidence, for another reason. The appellee Corydou W. Crossley, on the 30th day of March, 1876, qualified as the executor of the testator’s will, and entered upon the discharge of the duties of his trust. On the trial of the cause, and for the purposes of such trial, “ it was agreed between the parties, that the defendant Corydon W. Crossley is executor of the last will and testament of Coni’ad Crossley, deceased, and that he has all the time had sufficient assets with which to pay all the debts of said decedent, and all the legacies provided for by said will, and that the executor has paid the plaintiff, upon her legacy, eight hundred dollars, as follows: Oct. 11th, 1869,$400 00; Oct. 13th, 1869, $150.00; Sept. 19th, 1870, $100.00; Nov. 14th, 1870, $50.00; Dec. 22d, 1870, $100.-00. That said testator died the 12th day of March, 1869, andthat this executor was appointed as such on the 30th day of March, 1869. Said facts, so agreed upon, being considered as evidence in said cause.”
Upon these agreed facts, and the law applicable thereto, ■it is urged by the attorneys of the relatrix, that, even upon the theory of the ademption or satisfaction, by the testator in his lifetime, of the sum of $100.00 of the legacy to the relatrix named in the will, and that there remained of said legacy, to be paid by the executor, the sum of $800.00 and no more, the verdict of the jury was contrary to the law
Over the objections of the relatrix, the appellees were allowed by the court to give in evidence a paper writing, purporting to be a former will executed by the testator about one year prior to the execution of the will which was admitted to probate after his death. It seems to us that the court clearly erred in the admission of this old will. It was not competent evidence for any purpose. Upon the execution of the later will, the former one was revoked and became invalid and mere waste paper. The inferences attempted to be drawn from the old will and the later one, we think, were unsound and fallacious. In the old will, the testator appeared to have given the relatrix and her two sisters each the sum of $1,000.00, and in the later will only $900.00 each. After the execution of the former will, he gave the relatrix the first $100.00 ; and it is argued that, because the testator only gave her $900.00 in the later will, therefore he must have charged her with the first $100.00 as an advancement, and, as the first $100.00 was thus treated by the testator,
The court instructed the jury as follows : “ The presumption of law is, that the $100.00 paid was intended as a payment of so much of the legacy. And if there is no evidence or circumstances tending to rebut the presumption, you should so regal’d it as a payment of so much on the $900.00 legacy.” We think this instruction to the jury was clearly erroneous. As applicable to the case made by the evidence, the payment of the $100.00 by the testator to the relatrix, inter vivos, was not intended, under and by force of any presumption of law, as a payment of so much of the legacy. In commenting upon the evidence, we have already said all that we desire to say in regard to the law which, we think, is applicable to this case. There is no presumption of law, that the $100.00 given by the testator in his lifetime to the relatrix was intended by him as a payment pro tanto of her legacy. It was alleged by the appellees, in the third paragraph of their answer, that this $100.00 was intended as an ademption of a like amount of the legacy; but this was denied by the relatrix, and the burthen of this issue was on the appellees. Therefore, the court erred in instructing the jury, as it did in effect, that unless the relatrix had shown by evidence or circumstances, that the testator did not intend the $100.00 as a payment of a like amount of her legacy, the
Eor the reasons given, we are clearly of the opinion, that the court erred in overruling the motion of the appellant’s relatrix for a new trial.
The judgment is reversed, at the appellees’ costs, and the cause is remanded, with instructions to sustain the motion for a new trial, and for further proceedings not inconsistent with this oninion.