Carroll v. Swift

• Citation: 37 N.E. 1061,10 Ind.App. 170
• Decision Date: 22 June 1894
• Docket Number: 1,247
• Parties: CARROLL v. SWIFT ET AL
• Court: Indiana Appellate Court

37 N.E. 1061

10 Ind.App. 170

CARROLL v. SWIFT ET AL

No. 1,247

Court of Appeals of Indiana

June 22, 1894

From the Orange Circuit Court.

Judgment affirmed, at costs of appellant.

J. L Suddarth and W. J. Throop, for appellant.

J. L Megenity, W. Farrell and H. H. Farrell, for appellees.

OPINION

LOTZ C. J.

The appellant filed her petition in the circuit court, in which it is alleged that she is the widow of one Benjamin Carroll, deceased; that as such widow she is entitled to a distributive share of one-third of the surplus of said estate after the payment of all debts and expenses of administration; that Benjamin Carroll, prior to his marriage with the appellant, executed a will, which fact he concealed from the appellant; that at the time of her marriage with said Benjamin, he was the owner of a large amount of real estate, situate in Orange county, of the value of $ 10,000, all of which real estate is specifically described; that after the marriage, Benjamin Carroll desiring to convey said real estate, it was agreed by and between him and the appellant, that if she would sign the deeds and join in the conveyance of said real estate, he would pay her six hundred dollars cash and allow her one-third of the personal property held by him at the time of his death; that in consideration of said agreement, the appellant did sign the deeds and joined in the conveyance of all of said realty; that such promise and agreement was the only consideration for joining in said conveyances; that at the time of his death said Benjamin was the owner of, and in the possession of, a large amount of personal property, all of the value of $ 7,889.71; that after the payment of all the debts and costs of administration, there remains for distribution the sum of $ 5,338.41, one-third of which, to wit, $ 1,779.47, belongs to, and is the distributive share of, the appellant, as the widow of Benjamin Carroll; that the appellee Swift, as the executor of the will of Benjamin Carroll, has distributed among certain of the children and heirs of Benjamin Carroll the sum of $ 1,752.31, and has paid to the clerk of the court the sum of $ 3,723.57 for distribution; that said heirs claim all of said fund, and deny the right of appellant to any part or share thereof, and refuse to allow her to receive one-third or any part of said sum.

The prayer of the petition is that the court order that $ 1,779.47 be paid to her as her one-third share in said estate, and all other proper relief.

Swift, as executor of the will of Benjamin Carroll, and his children and heirs at law, were made parties to the proceeding, and process was issued against them. The executor and other heirs appeared and moved to strike out all that portion of the petition relating to the agreement for the conveyance of the real estate. This motion was sustained and this ruling presents the first error assigned. There was no error in this ruling. The facts stricken out, perhaps, might have constituted a valid claim against the estate of the...