Hinshaw v. Sec. Trust Co., No. 7,504.

Docket NºNo. 7,504.
Citation48 Ind.App. 351, 93 N.E. 567
Case DateJanuary 12, 1911
CourtCourt of Appeals of Indiana

48 Ind.App. 351
93 N.E. 567

HINSHAW
v.
SECURITY TRUST CO.1

No. 7,504.

Appellate Court of Indiana, Division No. 1.

Jan. 12, 1911.


Appeal from Probate Court, Marion County; Frank B. Ross, Judge.

Proceedings by the Security Trust Company, executor for Pierre Gray. From a judgment disallowing the claim of Benjamin E. Hinshaw, administrator de bonis non of Eliza J. Gray, and against the executor on a set-off, claimant appeals. Affirmed.

[93 N.E. 568]


Morton S. Hawkins, Frank B. Jaqua, and Clarence R. Martin, for appellant.
W. L. Taylor, L. B. Ewbank, and John W. Kern, for appellee.

LAIRY, J.

This is an appeal from a judgment of the probate court of Marion county founded on a claim filed by the appellant against the appellee. The appellee is the executor of the last will and testament of Pierre Gray and the appellant is the administrator de bonis non of the estate of Eliza J. Gray, who in her lifetime was the mother of Pierre Gray. The claim filed in favor of the mother's estate was based upon two notes, one for $3,000 and one for $1,000, and was in words and figures as follows: “Estate of Pierre Gray, deceased, to estate of Eliza J. Gray, two notes payable to Eliza J. Gray, for $1,000 and $3,000 respectively, dated April 5, 1897, 6 per cent. interest after date, due one day after date, payable at the Indiana National Bank of Indianapolis, Ind.” Notation on face of $1,000 note: “Collateral Stock Certificate No. 94, 10 shares First National Bank, Noblesville, Ind.” On $3,000 note: “Collateral Stock Certificate No. 93, 50 shares First National Bank Noblesville, Ind.” Three indorsements on backs: “Interest paid on December 24, 1897. Interest paid on June 24, 1898. April 24, 1908, principal and interest due, nine years and four months, $6,240.” The claim was properly verified.

To this claim, in addition to the answer that the law put in, the appellee filed an answer in set-off alleging in substance that the estate of Eliza J. Gray, at the time of her death, was indebted to Pierre Gray in the sum of $6,240; that on the 14th day of February, 1905, and from that time forward until the death of Pierre Gray, on the 25th day of December, 1907, the said Pierre Gray, Eliza J. Gray, and Bayard Gray were the equal owners in fee simple of a residence property situate on North Pennsylvania street in Indianapolis, Ind., and that said Eliza J. Gray, who was the mother of Pierre Gray, resided in the same residence property with Pierre Gray and his wife; that a contract was entered into, whereby Pierre Gray was to pay one-third of the expenses of maintaining the property, Eliza J. Gray one-third, and Bayard Gray one-third; that after said contract was entered into, Eliza J. Gray continued to live in the residence property, and that all the expenses heretofore referred to were paid by Pierre Gray, amounting in the aggregate to about $2,955; that Eliza J. Gray never paid the one-third of said expenses in accordance with agreement, and that she was at the time of her death indebted in the sum of one-third of the aggregate of said expenses, which the defendant below asked to have set off against the claim filed by the administrator of the estate of Eliza J. Gray. The cause was submitted to the court without the intervention of a jury, the evidence heard, and a general finding rendered by the court against the claimant, and also against the defendant on the set-off. A motion for a new trial was filed by the claimant, which was overruled, and judgment entered in the court below against the estate of Eliza J. Gray on the claim filed by the administrator, and also against the estate of Pierre Gray in the set-off filed by his executor. From this judgment, the administrator of the estate of Eliza J. Gray appealed to this court.

Appellee has assigned a cross-error in which he alleges that the claim filed in the court below does not state facts sufficient to constitute a cause of action. The question presented on the cross-error will be first considered, for the reason that if the claim filed is insufficient to sustain a judgment in favor of appellant, the judgment below in favor of appellee must be sustained, regardless of any other question presented. There was no demurrer filed in the court below to the claim; its sufficiency being challenged for the first time by assignment of error in this court. Had the claim been challenged by demurrer, there might have been serious doubts as to its sufficiency, for the reason that no copies of the notes upon which the claim is based are set out in the claim or filed with it as an exhibit; nor does the claim show affirmatively that said notes were signed by Pierre Gray in his lifetime. We think, however, that the claim is sufficient when attacked for the first time in this court. It appears in the record that two...

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15 practice notes
  • Kizer v. Davis, No. 2-1275A358
    • United States
    • Indiana Court of Appeals of Indiana
    • November 16, 1977
    ...have prevailed on quantum meruit. Davis would have us disregard this special finding. She cites Hinshaw v. Security Trust Co. (1911) 48 Ind.App. 351, 93 N.E. 567, for the proposition that a finding not made at the request of any of the parties but volunteered by the trial court may be disre......
  • Wells v. Wells, No. 11411.
    • United States
    • Indiana Court of Appeals of Indiana
    • April 26, 1923
    ...are aware of what has been said in this jurisdiction concerning certain written opinions of trial courts. Hinshaw v. Security Trust Co., 48 Ind. App. 351, 93 N. E. 567;Katterhenry v. Arensman, 183 Ind. 347, 108 N. E. 101. When the facts of those cases are scrutinized, it appears that the re......
  • Lucksinger v. Salisbury, No. 2572
    • United States
    • United States State Supreme Court of Wyoming
    • October 27, 1953
    ...set out must be construed as a general finding. Katterhenry v. Arensman, 183 Ind. 347, 108 N.E. 101; Hinshaw v. Security Trust Co., 48 Ind.App. 351, 357, 93 N.E. 567. Appellants' remedy, if any, was by a motion for new trial, and not by motion to modify. The request to modify the findings s......
  • Chicago & E.I.R. Co. v. Coon, No. 6,858.
    • United States
    • Indiana Court of Appeals of Indiana
    • January 12, 1911
    ...and complained of by appellant, is in substance an exact copy of an instruction held sufficient by the Supreme Court in the case of [93 N.E. 567]Terre Haute R. Co. v. Brunker, supra, at pages 551 and 552, 128 Ind., 26 N. E. 178, and is not subject to the objection urged by counsel. So with ......
  • Request a trial to view additional results
15 cases
  • Kizer v. Davis, No. 2-1275A358
    • United States
    • Indiana Court of Appeals of Indiana
    • November 16, 1977
    ...have prevailed on quantum meruit. Davis would have us disregard this special finding. She cites Hinshaw v. Security Trust Co. (1911) 48 Ind.App. 351, 93 N.E. 567, for the proposition that a finding not made at the request of any of the parties but volunteered by the trial court may be disre......
  • Wells v. Wells, No. 11411.
    • United States
    • Indiana Court of Appeals of Indiana
    • April 26, 1923
    ...are aware of what has been said in this jurisdiction concerning certain written opinions of trial courts. Hinshaw v. Security Trust Co., 48 Ind. App. 351, 93 N. E. 567;Katterhenry v. Arensman, 183 Ind. 347, 108 N. E. 101. When the facts of those cases are scrutinized, it appears that the re......
  • Lucksinger v. Salisbury, No. 2572
    • United States
    • United States State Supreme Court of Wyoming
    • October 27, 1953
    ...set out must be construed as a general finding. Katterhenry v. Arensman, 183 Ind. 347, 108 N.E. 101; Hinshaw v. Security Trust Co., 48 Ind.App. 351, 357, 93 N.E. 567. Appellants' remedy, if any, was by a motion for new trial, and not by motion to modify. The request to modify the findings s......
  • Chicago & E.I.R. Co. v. Coon, No. 6,858.
    • United States
    • Indiana Court of Appeals of Indiana
    • January 12, 1911
    ...and complained of by appellant, is in substance an exact copy of an instruction held sufficient by the Supreme Court in the case of [93 N.E. 567]Terre Haute R. Co. v. Brunker, supra, at pages 551 and 552, 128 Ind., 26 N. E. 178, and is not subject to the objection urged by counsel. So with ......
  • Request a trial to view additional results

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