Galvin v. Britton

• Decision Date: 07 April 1898
• Docket Number: 18,025
• Citation: 49 N.E. 1064,151 Ind. 1
• Parties: Galvin v. Britton, Administratrix, et al
• Court: Indiana Supreme Court

49 N.E. 1064

151 Ind. 1

Galvin v. Britton, Administratrix, et al

No. 18,025

Supreme Court of Indiana

April 7, 1898

Rehearing Denied June 17, 1898.

From the Marion Circuit Court.

Affirmed.

George W. Galvin, for appellant.

John S Duncan, Charles W. Smith and Henry H. Hornbrook, for appellees.

OPINION

Jordan, J.

Albert Galvin died intestate at Marion county, Indiana, on July 7, 1888, and the appellee, Elizabeth Britton, and George W. Galvin, in April, 1893, as administrators of said intestate, instituted, by petition, these proceedings to secure an order of the circuit court to sell certain real property in order to pay the debts and liabilities of the estate.No steps seem to have been taken in respect to this original petition, but in October, 1894, Elizabeth Britton, who at that time had become the sole administratrix of the estate, by leave of court filed an amended petition as a substitute for the original, which appeared to have been lost from the files of the court.Subsequently, she filed another amended petition on which the issues were joined and a trial had in this cause.The latter petition averred that the decedent, Albert Galvin, at the time of his death was the owner in fee simple of three certain described parcels of real estate, situated in the city of Indianapolis, in Marion county, Indiana.The first described parcel may be denominated and known as the Little's hotel property; the second as the Noble street property; the third was described as Lot 18 in McKernan & Pierce's subdivision of outlot 128 in the city of Indianapolis.This amended petition, after setting forth and describing these several parcels of land, and alleging that the same embraced all of the realty of which the decedent died seized, then proceeds to charge that the appellant(who is the wife of George W. Galvin) claimed that she was the owner of the second parcel, or the Noble street property, and in an adjustment had between appellee, Elizabeth Britton, and the said George W. Galvin, her brother, (they being the children and only heirs of said intestate) that said Galvin and Britton, together with the husband of the latter, after the death of said intestate, had released and quitclaimed their interest in the Noble street property to appellant, who thereafter had mortgaged the same to secure a large indebtedness of her own.The petition further set forth, in respect to the third parcel, that prior to the death of the decedent there had been an attempt to sell the same at sheriff's sale on a judgment rendered against him and his said son, George W., but that the same had been sold under a wrong description to one Oscar F. Britton, and after the death of Albert Galvin, in order to correct the mistake, Elizabeth Britton and her brother, George W., executed a deed to said purchaser, etc.A motion to strike out parts of this petition was filed by appellant and her husband, George W. Galvin, which motion the court denied, and said parties excepted.Mrs. Britton, having made herself a partydefendant to the petition, along with George W. Galvin and the appellant, filed a cross-complaint, setting up a certain written proposition or agreement, signed by herself and George W. Galvin, and the appellant, his wife, on February 20, 1889; which agreement in substance and effect is as follows: By its terms and stipulations Mrs. Britton proposed to George W. Galvin, as a settlement of the differences existing between them, as the heirs of the decedent, in regard to their respective interests and liabilities in and to the estate, to take certain pieces of real estate, including what was known as the East street property, which she claimed had been given to her by her father, at a valuation named in the proposition.She was to pay a $ 7,000.00 mortgage on the East street property, which had been executed by her said father, the money realized upon said mortgage having been paid to her brother, George W. Galvin.She was also to pay $ 836.96 to redeem one of the pieces of property from a sheriff's sale, and was to pay $ 50.00 which had been expended in procuring a quitclaim deed, and was to pay George W. Galvin the sum of $ 2,000.00 in cash.The latter was to take certain pieces of property at the valuation named in the proposition, including what was known as the Noble street property, which George W. Galvin claimed had been given to his wife by his father in the lifetime of the latter, and he was also to accept as a part of his share $ 6,000.00 which he owed to the estate of his father, and was to pay $ 2,000.00 in money.Another piece of property was to be held by Mrs. Britton and her brother, George W., jointly, and another piece was to be conveyed either to Mrs. Britton or her husband, as she might elect.Mutual conveyances were to be made to carry the agreement into effect, so far as the property was to be held in severalty.By this proposition both Mrs. Britton and George W. Galvin were to retain their individual interests in the Little's hotel property, and George W. was to execute to her an indemnifying mortgage on his interest in the said hotel property to secure her (Mrs. Britton) against any liability or loss an account of a note for $ 1,500.00 executed by the decedent, and then in litigation in the Hancock Circuit Court on a change of venue from Marion county, and any and all other claims and debts against her father's estate, created or incurred for George W. Galvin's benefit, together with all expenses of every character connected with any litigation in relation thereto.All other debts of said estate to be paid, one-half by each of the aforesaid parties.It was further proposed that letters of administration were to be issued to Mrs. Britton and George W. Galvin jointly.Mrs. Britton was to enter the indemnifying mortgage satisfied when the estate was settled.George W. and his family were to surrender the possession of the house on East street in which they lived, within ten days after the execution of the deeds, on the payment of the sum of $ 2,000.00.This written proposition, it appears, was delivered to George W. Galvin, who modified it to some extent by requiring the deeds for the property which was to go to him in severalty to be executed either to him or to him and his wife jointly, or to his wife alone, and that the $ 2,000.00 in cash to be paid by Mrs. Britton should be paid to his wife, the appellant herein.This written proposition, as thus modified, was accepted by the said Galvin and the appellant, his wife, in these terms: "The above proposition is accepted and is to become operative and have the force and effect of a deed upon the payment to Mary K. Galvin of the $ 2,000.00."This, as heretofore stated, was signed by George W. and Mary K. Galvin, and the written proposition was returned to Mrs. Britton, who received the same and acquiesced in such modification.The parties, it seems, in pursuance of this agreement, executed deeds according to its terms, and Mrs. Britton paid Mrs. Galvin, the appellant, $ 2,000.00 in money, and George W. and Mary K. Galvin, his wife, executed the indemnifying mortgage to Mrs. Britton as stipulated in the agreement.Letters of administration were issued to George W. and Mrs. Britton jointly, but subsequently the former resigned, and afterwards Mrs. Britton proceeded alone with the administration.The cross-complaint filed by Mrs. Britton sets forth all these facts, and also avers the recovery of a judgment of $ 1,948.00 on the said $ 1,500.00 note, and that George W. Galvin had not paid the same, but with costs and interest it was one of the debts for which the petition was filed to provide means of payment; and it also alleged that George W. had by the said agreement undertaken to pay all costs and expenses growing out of such litigation, and that he had wholly failed and neglected to do so; and that while he was acting as administrator he had made divers allowances to attorneys and others of certain sums therein specified for services in such litigation, which existed as unpaid claims against the estate, and was a part of the claims or debts for which it was asked that the land in the petition described be sold for the payment.It was also alleged therein that all the remainder of the debts of said estate, including interest and costs to the date of the filing of said petition, amounted to $ 391.03, which, under the terms of said settlement and agreement, should be borne equally by the cross-complainant and the said George W. Galvin.The cross-complainant also averred that she had at all times been ready to pay her one-half thereof, and she then brought one-half of said sum and paid it into court, and she prayed that if the said George W. and the appellant, Mary K. Galvin, should persist in longer litigating the matters and increasing the costs and interest, that the former's share in the estate be first charged with the payment of interest and costs so accrued by reason thereof, and the cross-complaint further prayed that the court might require the administrator first to sell the undivided one-fourth of said Little's hotel property, which had descended to George W. Galvin, and which had been mortgaged under the said agreement for the payment of the remainder of said indebtedness of said estate, to the exoneration of her interest in the lands of said decedent; and she pledged herself in her said complaint to make such interest, if ordered to be sold, bring enough money to pay all debts, and that only in the event said undivided one-fourth of said hotel property which descended to the said George W. Galvin failed to realize a sum sufficient to pay such debts should any other lands be sold for that purpose.

Appellant filed a separate answer to the petition to sell, to which the...