OPINION
ROBINSON, C. J.
Appellant
's complaint avers: That on March 20, 1893, Calvin C.
Spencer, father of appellant and appellee, made his last will
by which he devised to appellee the southeast quarter and the
northeast quarter of the southwest quarter of section
thirteen in a certain township and range, which will was
afterwards duly probated; that concurrently with the
execution of the will the testator addressed to appellee an
instrument in writing giving the substance
of his will and stating: "Now I desire that you shall
hold the following described property in trust for Fred, to
wit [property above described]; you shall manage the property
so held in trust and shall receive all rents, profits, and
revenue from the same, and convert the same into money, at
reasonable times, and after paying all necessary expenses,
including taxes, on said trust property, you shall pay the
balance of the money to Fred Spencer; you shall allow him the
full privilege of living upon the said land; I also desire
and intend that you shall hold the following described
property in trust for Rae Spencer, to wit: The south half of
the northeast quarter of section thirteen, also the south
half of the northwest quarter of section thirteen, town
twenty-six, range four west; you shall hold the property in
trust for Rae in the same manner and with the same powers
that you hold the property in trust for Fred, heretofore
described. In case you survive either Fred or Rae, then, in
that case, the property of the one you survive and of both if
you survive both, so held in trust by you, shall become yours
absolutely. You shall have power of control and disposition
of said property. Now if you will accept the property herein
mentioned on the terms above stated, and if you will carry
out my wishes and intentions as herein expressed I shall let
my will stand as I now have it;" that appellee agreed to
carry out the request in the above instrument and declaration
of trust; that on September 6, 1899, appellee brought suit
against appellant; that appellant filed a cross-complaint
against appellee, to which appellee filed an answer; that the
following proceedings were had in that cause: "On the
day of , 1900, at the April term, 1900, of said court, the
following proceedings were had in said cause, to wit: Comes
the defendant and cross-complainant in person, and Fred
Spencer by his attorney, E. B. Sellers, the appearance of
John R. Ward and Reynolds & Sills having been withdrawn,
and on motion and application of said Fred
Spencer that leave be granted him to withdraw his motion and
affidavit heretofore, on the 17th day of May, 1900, made and
filed herein for a change of venue of this cause from the
county, and now, upon said application and motion, and by
agreement of the parties hereto, leave is granted to withdraw
said affidavit for change of venue, and the order changing
the venue of said cause to Cass county, Indiana, is set
aside. The defendant withdrew his demurrer to the complaint
therein filed on the 6th day of September, 1899, and his
motion filed therein on December 11, 1899, to require
plaintiff to separate his causes of action, and also withdrew
his demurrer, filed therein, to the answer of said Charles C.
Spencer to the cross-complaint of said Fred Spencer, and the
said Fred Spencer, appearing in person, filed his reply in
the words and figures following, to wit [insert], to the
several paragraphs of answer of the said Charles C. Spencer,
as defendant, to said cross-complaint,
and by agreement of parties thereto, each appearing in open
court for himself, and the defendant Fred Spencer also by his
attorney, E. B. Sellers, said cause was submitted to the
court for trial, the issues being joined on the complaint of
said Charles C. Spencer and the cross-complaint of said Fred
Spencer, and the court, having heard the proof, and being
sufficiently advised on the issues joined on plaintiff's
complaint, and the answer thereto, and the issues joined on
the cross-complaint, find, upon such proof and the agreement
of parties thereto, that the allegations of plaintiff's
complaint and the several paragraphs thereof were true; that
the said Charles C. Spencer and Fred Spencer are sons of
Calvin C. Spencer, who died testate on the 14th day of
February, 1898, and his last will and testament was duly
admitted to probate in this court on February 16, 1898, and
recorded in will record four, pages 142 and 143, of the
records of wills of White county; that on the day said will
was executed by said testator he, by an instrument in
writing, requested the said Charles C.
Spencer to hold the following real estate in White county,
Indiana, to wit: The southeast quarter and the northeast
quarter of the southwest quarter of section thirteen,
township twenty-six north, range four west, in trust for the
use of Fred Spencer of the rents and profits, the fee simple
title to the same to remain in said Charles C. Spencer; a sum
equal to the net annual profit of said land to be paid to
said Fred Spencer. And the court found that by said will the
testator devised said real estate to said Charles C. Spencer,
who agreed to carry out said request in said instrument and
declaration of trust and has ever since the probate of said
will faithfully discharged his duties as trustee under said
trust. And the court found that, after the probate of said
will, Margaret Rae Spencer, who afterward became, by
marriage, Margaret Rae Rubright, began against the plaintiff
and defendant to the cross-complaint, Charles C. Spencer and
Fred Spencer, and others, a suit, which suit was commenced in
this court, and proceeded to final judgment and decree
establishing said will, and in said decree said trust was
recognized as to Fred Spencer, and during the continuance of
said trust relation the said Charles C. Spencer faithfully
discharged said duties as such trustee, and fully accounted
to said Fred Spencer in said trust. And the court further
found that said trust and trust relation continued until
March 28, 1899, when the said Charles C. Spencer and Fred
Spencer entered into a written agreement, whereby a full
settlement and accounting was had between them, and said
Charles C. Spencer bought from said Fred Spencer his life
interest in said lands, and paid him full value therefor, and
the said Fred Spencer at the time conveyed said land to said
Charles C. Spencer by deed, and conveyed thereby his life
estate and all other and any interest he, the said Fred
Spencer, had in said land, and fully and completely released
said Charles C. Spencer from accounting further in said trust
and for longer holding said land in trust, for which said Charles C. Spencer paid him full value
therefor. And the court found that at the time the said
agreement was entered into, March 28, 1899, said Charles C.
Spencer fully informed said Fred Spencer as to his legal and
other rights in and to said real estate under said will and
declaration of trust, and also fully informed him, the said
Fred Spencer, as to the value, nature, and character of the
consideration to be paid, delivered, and conveyed to him for
his said interest in said real estate, and at said time, to
wit, and ever since the probate of said will Fred Spencer
fully and well knew his rights and interest, and the value
thereof under said will and declaration of trust, and during
all of said time said Fred Spencer was, and is, of sound
mind, and over twenty-one years old, and several years the
senior of Charles C. Spencer, and capable of managing his own
affairs.
"And
the court found that said agreement and settlement was a fair
one, and made in the interest of both parties thereto, and
that the said Fred Spencer at the time fully understood the
same, and the terms thereof, and has received the full
consideration agreed to be given him. And the court found
that, pursuant to said agreement and settlement, each party
had received all the consideration provided for him
thereunder, and that the property so received said Fred
Spencer has enjoyed, possessed, and used as his own
absolutely, and said Charles C. Spencer has used and
possessed as his own, freed from the trust, said real estate.
And the court found that said agreement and settlement were
valid, and that by and under the same there was a full
settlement and adjustment of all differences, accounts,
liabilities, and all other matters of every nature existing
or claimed by either or both parties, and in all matters in
which either have an interest, including all claims growing
out of the estate of Calvin C. Spencer, or in any manner
affecting the same, or the trust created...
