Carroll v. Swift

• Citation: 37 N.E. 1061,10 Ind.App. 170
• Parties: CARROLL v. SWIFT et al.
• Decision Date: 22 June 1894
• Court: Court of Appeals of Indiana

10 Ind.App. 170
37 N.E. 1061

CARROLL
v.
SWIFT et al.

Appellate Court of Indiana.

June 22, 1894.

Appeal from circuit court, Orange county; S. B. Voyles, Judge.

Petition by Rebecca Carroll against William T. Swift and others for a distributive share in the estate of Benjamin Carroll, deceased. Demurrer to petition sustained. Plaintiff appeals. Affirmed.

J. L. Suddarth and Wm. J. Throop, for appellant. Farrell & Farrell and J. L. Megenity, for appellees.

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 $600 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

[37 N.E. 1062]

heirs claim all of said funds, 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...