Beard v. Lofton
| Decision Date | 27 June 1885 |
| Docket Number | 11,835 |
| Citation | 2 N.E. 129,102 Ind. 408 |
| Parties | Beard v. Lofton |
| Court | Indiana Supreme Court |
From the Washington Circuit Court.
Judgment affirmed, with costs.
S. B Voyles, H. Morris and J. Dailey, for appellant.
D. M Alspaugh and J. C. Lawler, for appellee.
This action is based upon the following written contract:
Appellant brought this action against Alexander Lofton alone. Her complaint was in two paragraphs. The material averments of the second paragraph may be summarized as follows: Before April 6th, 1880, Simeon Lofton, the father of the parties, died testate, the owner of certain described lands. By the terms and provisions of his will, the lands were devised to appellee in fee simple, subject only to the life-estate in the mother, who died before this action was commenced. Prior to the making of the contract, appellant had filed a claim against the estate of the father and testator for $ 2,200. Upon a trial below she was defeated, and appealed to this court. This is the claim and appeal referred to in the contract, a copy of which was filed with each paragraph of the complaint. It is averred that appellee agreed and promised by said written contract, that appellant should have as much of the estate as should come to his hands. Upon the delivery of the contract to appellant, she dismissed her appeal and abandoned her suit. The land, it is averred, was distributed to and vested in appellee, by reason of the will, and in no other way.
David Beck, as the administrator with the will annexed, had closed up the estate of the father by final settlement before this action was commenced. Appellant received nothing from the estate by distribution or otherwise. The other children, except appellee, got nothing, and were entitled to nothing in the lands under the provisions of the will or otherwise.
Appellee has refused to divide the lands with appellant equally, or in any other way, and has refused to account to her for the value. Prayer for damages against appellant on account of the breach of the contract.
The first paragraph is substantially the same, except that it is there averred that the father left a personal estate, a part of which was devised to appellee.
An issue was made, and the case was tried upon the first paragraph. Appellee demurred to the second paragraph, and stated as grounds of demurrer: First. That it did not state facts sufficient to constitute a cause of action against him; and, Second. That there was a defect of parties defendants, in that the other persons who signed the contract with him, naming them, had not, but should have been, joined as parties defendants.
This demurrer was sustained, and appellant excepted. She assigns this ruling as error.
It is said by her counsel that the demurrer was sustained wholly upon the first ground therein stated. But as the record does not show that the case is before us for decision as to whether or not upon either ground, the demurrer was properly sustained. As the first ground of demurrer presents the controlling question in the case, we limit our examination, in the main, thereto.
The complaint alleging neither mistake nor fraud, of course a reformation is not asked for. The contention is that under the contract and the averments in the complaint, appellant is entitled to recover from appellee an amount equal to one-half the value of the land. In the construction of contracts the leading purpose, of course, is to ascertain the true meaning of the contracting parties. But, in doing this, courts are confined to the contract as written, in the absence of proper averments of mistake. The following has been quoted by this court with approval from Mr. Greenleaf: "The terms of every written instrument are to be understood in their plain, ordinary, and popular sense, unless they have, generally, in respect to the subject-matter, as, by the known usages of trade, or the like, acquired a peculiar sense, distinct from the popular sense of the same words; or unless the context evidently points out that, in the particular instance, and in order to effectuate the immediate intention of the parties, they must be understood in some other and peculiar sense." Evansville, etc., R. R. Co. v. Meeds, 11 Ind. 273.
We are met at the threshold with this decisive question, What was the estate about which the parties were contracting, and from which appellant was to receive a share? It was stipulated in the contract that in the distribution of the estate of the father, appellant should receive an equal share with each other child. This clearly implies that the estate in which she should share was an estate in which each other child should share. It was in reference to such an estate that the contract was made, as is clearly shown by the terms of the contract. This could not have been the lands, because it was utterly impossible for each of the other children to share in them. The lands had been disposed of by the will, and had thus become the absolute property of appellee. The other children could not share in them. It is averred in the paragraph of complaint under examination, that the other signers of the contract, except appellee, "got nothing, and were entitled to nothing in said lands, under the provisions of said will, or otherwise." If the other children were not entitled to share in the lands, clearly they did not constitute the estate, nor a part of the estate, in the distribution of which appellant was to share equally with them. Undoubtedly the contract had reference to an estate in which each of the other children might be entitled to share. Just why appellant should contract to share with the other children we can not say from anything in the paragraph of complaint. It is enough that she did it. We can conceive of reasons, such as an advancement.
She was also to get her share with each other child through "the distribution of the estate." That distribution could not have had relation to the lands, because the other children were not to share in them under any contingency; they had been disposed of by the will.
In the sense of the statute, and in the sense in which the terms are generally used, the distribution of an estate has reference to the personal property and money arising from the sale of real estate by the administrator, among the heirs, after the payment of the debts and legacies. 2 R. S. 1876, p. 543 section 137; R. S. 1881, section 2405. In the absence of a will, the land is not distributed, but descends to the heirs. If there be a will, the lands are not distributed, in the statutory and ordinary sense, but go by force of the will. Until something appears to the contrary, it ought to be presumed that the word "distribution" was used in the statutory and ordinary sense. It should...
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