Caylor v. Caylor's Estate

• Decision Date: 06 January 1899
• Docket Number: 2,585
• Citation: 52 N.E. 465,22 Ind.App. 666
• Parties: CAYLOR v. CAYLOR'S ESTATE
• Court: Indiana Appellate Court

52 N.E. 465

22 Ind.App. 666

CAYLOR v. CAYLOR'S ESTATE

No. 2,585

Court of Appeals of Indiana

January 6, 1899

Rehearing denied June 30, 1899.

From the Hamilton Circuit Court.

Reversed.

Roberts & Vestal, for appellant.

Robert Graham and Lamb & Hill, for appellee.

OPINION

WILEY J.

Appellant filed a claim against decedent's estate, which was passed to the issue docket for trial. The claim is in two paragraphs, to each 6f which a demurrer was sustained, and appellant refusing and failing to plead over, judgment was rendered against him for costs. Sustaining the demurrer to each of said paragraphs is assigned as error.

In the first paragraph it is alleged that appellant from his early childhood until he became of age resided in the family of the decedent, Caylor; that the family consisted of Mary Caylor, wife of said Daniel Caylor, and appellant; that said Mary was the second wife of said Daniel, and childless; that during her married life to decedent she loaned him a large sum of money; that she died intestate May 16, 1895, leaving said Daniel as her only heir; that at the time of her death said Daniel was indebted to her in the sum of $ 1,500; that at her death she owned divers promissory notes, the makers of which are unknown to appellant; that said notes aggregated at least $ 300; that she owned other personal property to the value of $ 200; that at the time of her death, said notes and personal property were in the possession of the said Daniel; that the said Mary was desirous that appellant should have all her estate at her death, and that, shortly before her death, for the purpose of bestowing her said estate upon him, entered into an agreement with said Daniel by which said Daniel agreed to and was to turn over and deliver to appellant, all and singular, her estate after her death, and account to appellant for all said money and property; that said agreement also provided that the real estate of which she died seized should go to appellant, the same to be taken in full payment of her account against said Daniel; that said Daniel failed to comply with said agreement, except as to the real estate, and converted all of said personal assets to his own use; that, in pursuance to said agreement, said Daniel conveyed all of said real estate to appellant; and, by reason of all of said facts, said estate is indebted to him, etc.

The second paragraph is like the first as to all material allegations, and differs from it only in this: In the second paragraph it is averred that appellant was the nephew of the said Mary; that on May 16, 1895, she was stricken with disease, which soon developed into an alarming and fatal condition; that within an hour of her death, and believing that she was approaching dissolution, called for appellant, and, being informed that he was not present, she called for the said Daniel, and informed him that she believed she would not live to see appellant, and that she then gave appellant all her property, both real and personal; that, in pursuance to her said gift, she directed and enjoined upon said Daniel to deliver over and pay to appellant all and singular her property then in his possession; that said Daniel then and there accepted said trust, and agreed to perform the same in all respects; that said Daniel soon after died, without complying with the directions given him by said Mary; that the administrator of the estate of said Daniel took possession of all of said property, mingled it with the assets of the estate of said Daniel, and has failed and refused to account to appellant therefor. In this paragraph it is further alleged that the said Mary died leaving no debts, and that there are no debts against her estate. It is further charged that appellant remained in ignorance of said gift to him until after the death of said Daniel; that he made a demand upon the administrator of his estate to comply with said trust, but that he refused to do so. It is also charged that the said Mary never afterwards made any other or further disposition of her property.

Appellant argues that the first paragraph of the complaint rests upon the alleged agreement of Daniel Caylor with his deceased wife to turn over and deliver all of the property of which she died seized, both real and personal, to him; and that the second paragraph of complaint rests upon a gift causa mortis. We may properly adopt the theory of the complaint contended for by appellant, for the rule prevails in this State that a plaintiff must recover secundum allegata et probata, or not at all.

Appellee claims that the first paragraph of the complaint is insufficient because there was no consideration on the part of Daniel Caylor to support the agreement. There seems to be some merit in this claim, and we will consider it. Daniel Caylor was the husband of Mary. Their marriage was fruitless in children. By the averments of the complaint, the said Mary was without heirs, other than her husband. It follows, therefore, that at her death, in the absence of a will, or other legal disposition of her property, the said Daniel would inherit her entire estate. Section 2651 Burns 1894, section 2490 Horner 1897. It also appears from the complaint that Daniel was indebted to Mary in the sum of $ 1,500 for money loaned to him. While this amount, during her life, was a claim against him, which she might have enforced, yet, at her death said indebtedness would have become liquidated and canceled, for it was a part of her estate, and he was entitled to the whole estate; otherwise, it would have been a debt against himself, and this could not exist. So we find from the complaint that Daniel not only agreed to turn over and deliver to appellant upon the death of Mary all of her estate, but also promised to pay to appellant the $ 1,500 which he had borrowed of her, which, by her death, he would not be otherwise bound to pay. By this agreement he relinquished all of his right, title, and interest in the estate of his wife, and promised to deliver it all to appellant.

In all contracts and agreements, there must be some consideration to support them. A contract without any consideration is a nudum pactum. From the allegations of the first paragraph of the complaint we are unable to discover any consideration moving to Daniel for the agreement. Daniel was given nothing by his wife, by the averments of the complaint, which can be construed into a consideration for his promise to pay to appellant the $ 1,500, or to turn over to him all of her property. There was to be no diminution of the amount her husband owed her, as any consideration for his promise to pay $ 1,500 to appellant, but, under the averments of the first paragraph, the entire amount was to be paid. At the death of his wife, the debt owing to her by Daniel would have been abrogated or canceled, because he was her sole surviving heir, and the amount would have become his own by inheritance, subject only to debts against her estate. Also, under the first paragraph, Daniel, as the husband of Mary, was given nothing which could be construed into a consideration for his promise to pay appellant $ 1,500, or to turn over to him the entire estate of the said Mary. To enforce this alleged agreement would be to hold that the said Daniel abandoned every right he had in the estate of his deceased wife, and that too without any consideration moving to him for the performance of the agreement on his part. There is a further objection to this paragraph. It is not charged that the estate of Mary was solvent; that there were no just claims against it, or that it had been settled. Her estate was subject to the payment of all of her debts, and she could not dispose of her property in derogation of the rights of her creditors. A pleading will be construed most strongly against the pleader. The court correctly sustained the demurrer to this paragraph of complaint.

We will next consider the sufficiency of the second paragraph of the complaint. As we have seen, the theory of this paragraph is that the facts constitute a gift causa mortis. We will enter upon the discussion of this question with the fact in view that gifts causa mortis are not favored in law. In 3 Wait's Actions and Defenses, 502, it is said "Gifts causa mortis are not favored in law. They are said to be a fruitful source of litigation, often bitter, protracted, and expensive. They lack all those formalities and safe-guards which the law throws around wills, and create a strong temptation to the commission of fraud and perjury. * * * To constitute a valid gift causa mortis, three things are requisite: 1. It must be made with a view of the donor's death from present illness or from external or apprehended peril. 2. The donor must die of that ailment or peril. 3. There must be a delivery." See, also, Grymes v. Hone, 49 N.Y. 17; Emery v. Clough, 63 N.H. 552, 4 A. 796; Kiff v. Weaver, 94 N.C. 274; Smith v. Ferguson, 90 Ind. 229; Parcher v. Savings Institution, 78 Me. 470, 7 A. 266; Taylor v. Bruscup, 48 Md. 550; Dickeschied v. Bank, 28 W.Va. 340. In Vol. 8; (1st ed.) Am. & Eng. Ency. of Law, p. 1342, in note 1, it is said: "Such transfers of property are not, as a rule favored by the courts, for the reason that they are open to the objections of uncertainty, which the law seeks to avoid, in reference to wills, by its strict provisions and precautions as to their execution and proof. Great strictness and clear proof are therefore required to establish such gifts, and they can only be upheld when the intention of the donor is clear and definite, and such intent is fully carried out by execution." See, Parsons on Contracts, (6th ed.) 2237; Gano v. Fisk, 43 Ohio St. 462, 3 N.E. 532; Hatch v. Atkinson, 56 Me. 324; Marshall v. Berry, 13 Allen (Mass.) 43, note. I...