Andrews v. Harris, 18789

• Decision Date: 29 April 1957
• Docket Number: No. 18789,18789
• Citation: 127 Ind.App. 352,141 N.E.2d 761
• Parties: Theophlius ANDREWS and George B. Hoffman, Jr., Administrator of the Estate of Leonard Settles, Deceased, and Mercantile National Bank, as guardian of Theophlius Andrews, Appellants, v. Roxanna HARRIS, Appellee.
• Court: Indiana Appellate Court

Page 761

141 N.E.2d 761

127 Ind.App. 352

Theophlius ANDREWS and George B. Hoffman, Jr., Administrator of the Estate of Leonard Settles, Deceased, and Mercantile National Bank, as guardian of Theophlius Andrews, Appellants, v. Roxanna HARRIS, Appellee.

No. 18789.

Appellate Court of Indiana, In Banc.

April 29, 1957.

Sachs, Ruman & Tanasijevich, Saul I. Ruman, Hammond, for appellants.

William I. Marlatt, Gary, for appellee.

CRUMPACKER, Judge.

One Leonard Settles died of late leaving the appellant Theophlius Andrews, a minor child, as his sole and only heir at law. The appellant George B. Hoffman, Jr., is the duly qualified and acting administrator of the Settles estate and the appellant Mercantile National Bank is the legal guardian of the minor heir Theophlius Andrews. At the time of his death the said Leonard Settles together with the appellee Roxanna Harris were the owners, as tenants in common, of Lot 16, Block 3, Chicago, Tolleston Land & Investment Company's Fifth Addition to Tolleston, also known as 1609 Adams Street, Gary, Indiana. Said lot is improved by a building, the character of which is not disclosed by the record, but it appears that the property is not susceptible of division in kind and the appellee, desiring her interest therein set off to her, brought this suit against the appellants to force the sale of the property had a division of the proceeds. In her complaint she alleges that the real estate involved, together with a policy of fire insurance thereon, was purchased from one Alexander Mouroutis for $6,059.20 cash. That she paid the entire price but title was taken in the names of herself and Leonard Settles, as tenants in common, upon the express agreement between them that she was to have a lien on the undivided one-half interest of Settles in the sum of $3,029.60 until such time as he should reimburse her for the money so advanced in his behalf. That no part of said money has been paid to her and she asked the court to order the property sold and her said lien discharged from that half of the proceeds belonging to the Settles estate. Issues were joined on this complaint and the cause was submitted to the court for trial resulting in a finding for the appellee and judgment of partition by sale of the property and a division of the proceeds and the discharge of the appellee's lien out of the Settles estate share thereof.

It appears that at the trial the appellee offered as a witness one A. Martin Katz an attorney at law, who represented Leonard Settles and Roxanna Harris in preparing the deed from Alexander Mouroutis to them and doing such things as were necessary in closing the transaction. The appellants objected to the competency of Katz as a witness to any matters occurring prior to the death of Leonard Settles on the theory that he was Settles' agent in the making of a contract during his lifetime and that this suit involves such contract and is against the legal representative and heir of said decedent. This objection was overruled by the court and Katz testified in effect that while employed as Leonard Settles' attorney he learned from conversations with Settles that he and Roxanna Harris were going to purchase the Mouroutis property together, with the said Harris furnishing all the money, and that the said Settles, now deceased, had agreed to repay Harris one-half of the purchase price out of the rent from the property and that Harris should have a lien on his interest in the property until she was repaid. The appellants refer us to no authority in support of their contention that Katz was an incompetent witness except § 2-1717, Burns' 1946 Replacement, the pertinent part of which reads as follows:

'No person who shall have acted as an agent in the making or continuing of a contract with any person who may have died shall be a competent witness in any suit upon or involving such contract as to matters occurring prior to the death of such decedent, on behalf of the principal to such contract, against the legal representatives or heirs of the decedent, unless he shall be called by such heirs or legal representatives.'

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