Gifford v. Gifford

• Decision Date: 22 December 1914
• Docket Number: No. 8725.,8725.
• Citation: 107 N.E. 308,58 Ind.App. 665
• Parties: GIFFORD v. GIFFORD.
• Court: Indiana Appellate Court

58 Ind.App. 665

107 N.E. 308

GIFFORD

v.GIFFORD.

No. 8725.

Appellate Court of Indiana, Division No. 1.

Dec. 22, 1914.

Appeal from Circuit Court, Monroe County; Robert N. Millen, Judge.

Suit by Effie Gifford, administratrix of Otho Gifford, deceased, against Martha Gifford and another. From a judgment for plaintiff against defendant Martha Gifford, the latter appeals. Reversed, with instructions to sustain a motion for new trial.J. E. Henley and Miers & Corr, all of Bloomington, for appellant. Rufus H. East and John F. Regester, both of Bloomington, for appellee.

FELT, J.

This suit was brought by Effie Gifford, administratrix of the estate of Otho Gifford, deceased, against appellant, Martha Gifford, and Benjamin F. Gifford, to recover for certain services alleged to have been rendered appellant and her husband, AbsalomGifford, whose death occurred before that of appellee's decedent. The amended complaint on which the case was tried was in three paragraphs. Benjamin F. Gifford filed an answer disclaiming any interest in the real estate described in appellee's complaint. Appellant filed answer in 12 paragraphs, the first of which was a general denial. The answers set up in different ways pleas of payment, suretyship, coverture, and the six-year statute of limitations. Demurrers to the special answers were overruled. The issues were closed by a reply in general denial to each paragraph of special answer. The case was tried by the court without a jury, and resulted in a finding and judgment for appellee in the sum of $750 against appellant, Martha Gifford, and in favor of Benjamin F. Gifford for costs. Appellant made a motion for a new trial, which was overruled, and an exception duly reserved.

The errors relied on for reversal are: (1) Overruling the demurrer to the amended complaint; (2) overruling appellant's motion for a new trial; and (3) overruling appellant's motion to modify the judgment.

The grounds of the motion for a new trial relied on for reversal are: (1) That the finding of the court is not sustained by sufficient evidence; (2) error in the assessment of the amount of the recovery, the same being too large; and (3) error in the admission of certain evidence and in refusing to strike the same out of the record.

The first paragraph of amended complaint shows that the plaintiff, Effie Gifford, is the widow of Otho Gifford, deceased, who was a son of appellant and Absalom Gifford, deceased, who died on October 20, 1907; that said Effie is the duly appointed and acting administratrix of the estate of said Otho W. Gifford, deceased, who died in June, 1910; that in 1899 said Absalom and Martha Gifford became and continued the owners in fee simple, as tenants by entirety, of 100 acres of real estate in Monroe county, Ind., until the death of said Absalom; that plaintiff and her said husband for 15 years prior to his death made their home with the said Martha and Absalom Gifford, during all of which time plaintiff and her said husband rendered valuable services for her husband's said father and mother in the way of work on their farm, cutting wood, feeding and caring for their live stock, waiting upon and nursing said Absalom and Martha in sickness; that plaintiff, the wife of said Otho W. Gifford, at his special instance and request, and at the request of said Martha and Absalom Gifford, did the housework, ironing, and sewing for said Martha and Absalom; that plaintiff and her said husband had two children, Doland, aged 14 years, and Gretta, aged 7 years, who also rendered valuable services for said Martha and Absalom; that all of the services so rendered as aforesaid were of the value of $500; that during all of said time said Absalom was ill with kidney trouble and asthma, unable to do work, and during the last 18 months of his life he was sick and almost helpless, and required a great deal of care and nursing, which services were rendered by his said son, Otho W., and the members of his family, and were of the value of $100 per month; that he left no personal estate of any kind, and his estate was never administered upon; that nothing was paid the said Otho W. Gifford or the members of his family for any of the said services so rendered as aforesaid; that many years prior to the death of Absalom, in consideration of the services already rendered as aforesaid, and in consideration that the said Otho W. and the members of his family would continue like services during the remainder of the life of said Absalom and Martha, and in further consideration of the payment of the taxes on said 100 acres of real estate and the interest on a mortgage thereon for $600, the said Absalom and Martha both jointly and severally promised and agreed with said Otho W. Gifford that they would execute their last wills and testaments and thereby devise to the said Otho W. Gifford the 60 acres of said 100 acres on which the buildings were located, particularly describing the same; that said 60 acres is of the value of $5,000; that, in reliance upon said agreement, said Otho W. and his family continued to perform said services and paid said interest and taxes and made improvements on said land; that about the year of 1906 said Absalom and Martha placed said Otho W. Gifford in full possession and control of said real estate, which possession and control continued without interruption until the death of said Otho W. in June, 1910; that after the death of said Absalom the said Martha continued to live with said Otho W. and family, and the said Otho W. and family continued to perform the services aforesaid, and the said Martha continued to accept the same, and ratified the joint contract so made as aforesaid; that after the death of said Absalom said Otho W. paid to said Martha $100 per annum as cash rent for said 100 acres, and continued to pay the interest and taxes as aforesaid and to improve said land; that immediately after the death of said Otho W. said Martha destroyed said wills, and repudiated the agreement so made as aforesaid, and refused to be bound thereby, and executed another will, by which she devised all of said 100 acres of real estate to the defendant Benjamin F. Gifford; that she thereupon ousted said Effie Gifford and her children from said real estate and denied her the possession of any part thereof; that said Martha Gifford is indebted to plaintiff as such administratrix in the sum of $5,000; that said Otho W. paid taxes and made improvements worth $1,000, and paid interest on said mortgage amounting to $400. Prayer for $10,000, and that a lien be declaredon said 60 acres of real estate therefor, and that the same be sold in satisfaction thereof.

The other paragraphs are substantially the same as the first, except it alleged in the second paragraph that:

“The said Absalom and Martha Gifford did sell, transfer, and agree to devise by will to said Otho W. Gifford 60 acres of said real estate above described, upon which the improvements were situated.”

The objections urged against the complaint are that it is a suit on an account, and no bill of particulars is filed with, or made a part of, the complaint; that the first paragraph shows that the two families lived together under such circumstances as to require an express contract to pay for the services rendered, and fails to allege any such contract.

[1] The record does not disclose the date of the filing of the original complaint, or that any such complaint was filed, but it does show that the amended complaint on which the case was tried was filed on June 13, 1911. The act of 1911 requiring a memoranda of objections to accompany a demurrer to a complaint for insufficiency of facts, in order to save any question relating to the ruling thereon, went into effect on April 21, 1911. Laws 1911, c. 157, § 2, subd. 6. While we may infer that a complaint was filed prior to the filing of the amended complaint, we are not warranted in holding that the original complaint was filed prior to April 21, 1911. No memoranda accompanies the demurrer, and, as the only complaint shown by the record was filed subsequent to the taking effect of the act, all objections to the sufficiency of the complaint are deemed waived in accordance with the provisions of said act.

[2] Error of the trial court in the admission of certain evidence is urged by appellant. Effie Gifford, the surviving wife of Otho Gifford, was permitted, over appellant's objection, to testify to certain declarations of said decedent, Otho Gifford, made in his lifetime, relating to his possession of, and right to, the real estate on which they then resided, and which, it was alleged, was to become the property of said Otho in payment for services rendered appellant and her husband in their lifetime. The substance of the evidence so admitted is to the effect that Otho Gifford, when in failing health, and while in possession of said farm, was urged to go away for his health, and said to his wife that he would not go away unless she stayed and held possession of the place; that he had put his whole life in the farm, and could not afford to lose it; that she told him he would not get anything out of it, and he told her he would; that if anything happened to him he wanted something left for his family; that she said his mother would not let them have it, and he replied that, if she did not know enough to do what was right, the law would compel her to do what was right; that he believed his father would have deeded him the farm if it had not been for his Uncle George; that Absalom Gifford had said to him that he had made provisions for him for taking care of Martha Gifford, his mother. The objection urged was that the evidence consisted of self-serving declarations of Otho Gifford made out of the presence of the adverse party, and therefore not admissible in his own behalf or on behalf of his legal representatives; also that the statements were not admissible because they were privileged communications...