Coulter v. Crawfordsville Trust Co.

• Decision Date: 25 June 1909
• Docket Number: 6,774
• Citation: 88 N.E. 865,45 Ind.App. 64
• Parties: COULTER v. CRAWFORDSVILLE TRUST COMPANY, ADMINISTRATOR
• Court: Indiana Appellate Court

88 N.E. 865

45 Ind.App. 64

COULTER v. CRAWFORDSVILLE TRUST COMPANY, ADMINISTRATOR

No. 6,774

Court of Appeals of Indiana

June 25, 1909

Rehearing denied October 28, 1909. Transfer denied December 16, 1909.

From Montgomery Circuit Court; Jere West, Judge.

Suit by The Crawfordsville Trust Company, as administrator of the estate of Elizabeth Coulter, deceased, against Samuel Coulter. From a decree for plaintiff, defendant appeals.

Affirmed.

Clodfelter & Hesler, Perkins & McAlister, and Louis B. Ewbank for appellant.

Clyde H. Jones and John B. Murphy, for appellee.

OPINION

MYERS, J.

Appellee, as administrator of the estate of Elizabeth Coulter, deceased, brought suit against appellant to enforce payment of $ 1,500 and interest thereon, and to have said sum declared a lien against certain real estate in Montgomery county, Indiana.

The complaint was in two paragraphs. A demurrer to each paragraph for want of facts was overruled. Appellant answered by a general denial and by affirmative paragraphs. Appellee replied in denial and by affirmative paragraphs. The issues thus formed were submitted to the court for trial, and as advisory to the court certain questions of fact were submitted to a jury, resulting in a finding and judgment for appellee, and against appellant in the sum of $ 1,707.64, which amount was adjudged to be a lien upon certain real estate described in the complaint. For a reversal of that judgment the overruling of appellant's demurrer to each paragraph of the complaint is assigned as error.

In the first paragraph of the complaint it is alleged that William Coulter died testate in May, 1886, and that Elizabeth Coulter, appellee's decedent, was his surviving wife; that at the time of the former's death, through their joint efforts, they had accumulated property of the value of $ 8,000. A copy of the will of William Coulter is made a part of the complaint, and in so far as it is pertinent to the questions here to be considered it reads as follows:

"II. I give and bequeath unto my wife, Elizabeth Coulter, $ 1,500 to stand in the farm with six per cent interest and all in the house and the northwest room downstairs and the north room upstairs or any of my family so long as they may remain single and my wife to have one cow and feed and pasture for the same and all needed fire wood.

III. I give and bequeath unto my son James B. Coulter $ 1,000 to stand in the farm to draw six per cent interest and also one horse and one cow.

IV. I give and bequeath unto my daughter Margrite $ 550.

V. I give and bequeath unto my daughter Priscilla Jane $ 550.

VI. I give and bequeath unto my daughter Martha $ 550.

VII. I give and bequeath unto my daughter Alice $ 550.

VIII. I give and bequeath unto my son Samuel Coulter the one-half of my farm and the one-third of the horses, cows, hogs and sheep and farming tools by paying one-half of the heirs.

IX. I give and bequeath unto my son John N. Coulter the one-fourth of my farm and one cow and one-third of the horses, cows, hogs and sheep and farming tools by him paying one-fourth of the heirs.

X. I give and bequeath unto my son Harvey Coulter the one-fourth of my farm and one cow and the one-third of my horses, cows, hogs and sheep and farming tools by him paying one-fourth of my heirs.

XI. My sons Samuel, John N. and Harvey to divide the farm to suit themselves.

XII. None of the above money bequests to be due until one year after my decease."

It was also alleged that said will was duly probated on May 14 1886; that on July 30, 1886, the appellant by deed acquired the interests of John N. and Harvey Coulter in and to the land or farm as mentioned in said will; that after the death of said William Coulter, and prior to the execution of said deed whereby the appellant became the owner of the entire farm, each of the legatees and devisees under said will agreed upon a construction to be placed upon said item two of said will, and so construed the same as that by the provisions thereof said $ 1,500 was to be considered and treated as an absolute bequest to said Elizabeth Coulter, and a lien upon said farm; that all of said legatees and devisees from that time on so treated said item as creating an indebtedness in favor of said Elizabeth Coulter for $ 1,500, and a lien and charge against said farm; that said John N. and Harvey Coulter, as well as the appellant, acting upon said agreement and the construction so placed upon said item two, retained of the purchase money for said real estate so acquired from John N. and Harvey Coulter enough to pay the one-half of said $ 1,500; that on October 13, 1904, Elizabeth Coulter died testate, leaving no other property than said $ 1,500 and interest thereon, which is...