Hinshaw v. Security Trust Company

• Decision Date: 12 January 1911
• Docket Number: 7,504
• Citation: 93 N.E. 567,48 Ind.App. 351
• Parties: HINSHAW, ADMINISTRATOR, v. SECURITY TRUST COMPANY, EXECUTOR
• Court: Indiana Appellate Court

93 N.E. 567

48 Ind.App. 351

HINSHAW, ADMINISTRATOR, v. SECURITY TRUST COMPANY, EXECUTOR

No. 7,504

Court of Appeals of Indiana

January 12, 1911

Rehearing denied and opinion Modified May 12, 1911. Transfer denied June 30, 1911.

From Probate Court of Marion County (8,956); Frank B. Ross, Judge.

Action by Benjamin E. Hinshaw, as administrator de bonis non, with the will annexed, of the estate of Eliza J. Gray, deceased against the Security Trust Company, as executor of the last will of Pierre Gray, deceased. From a judgment for the defendant, plaintiff appeals.

Affirmed.

Marton S. Hawkins, Frank B. Jacqua and Clarence R. Martin, for appellant.

William L. Taylor, Louis B. Ewbank and John W. Kern, for appellee.

OPINION

LAIRY, J.

This is an appeal from a judgment of the Probate Court of Marion County, founded on a claim filed by appellant against appellee. Appellee is the executor of the last will and testament of Pierre Gray, and appellant is the administrator de bonis non of the estate of Eliza J. Gray, who was the mother of Pierre Gray. The claim filed in favor of the mother's estate was based on two notes, one for $ 3,000 and one for $ 1,000, and was in the 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, six per cent interest after date, due one day after date, payable at the Indiana National Bank, of Indianapolis, Indiana." The following notation was on the face of the first note: "Collateral Stock Certificate No. 94, ten shares, First National Bank, Noblesville, Indiana." On the last note was the following: "Collateral Stock Certificate No. 93, fifty shares, First National Bank, Noblesville, Indiana." Three indorsements were on the backs of the notes: "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 puts in, 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 February 14, 1905, and from that time until the death of Pierre Gray, on December 25, 1907, Eliza J. Gray, Pierre Gray and Bayard Gray were the equal owners in fee simple of a residence property on North Pennsylvania street, in Indianapolis, Indiana, and that Eliza J. Gray resided therein with Pierre Gray and his wife; that a contract was entered into whereby Eliza J. Gray, Pierre Gray and Bayard Gray each was to pay one-third of the expenses of maintaining the property; 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 part of said expenses, in accordance with the agreement, and at the time of her death she was indebted in the sum of one-third of the aggregate of said expenses, which appellee 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 was heard, and a general finding rendered against the claimant, and also against appellee on the set-off. A motion for a new trial was filed by the claimant, which was overruled, and judgment was entered in the court below against the estate of Eliza J. Gray on the claim filed by the administrator of her estate, and also against the estate of Pierre Gray on 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 considered first, 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 to the claim filed in the court below, 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. The claim, however, is sufficient when attacked for the first time in this court. It appears that two notes signed by Pierre Gray, and corresponding in dates and amounts to those described in said claim, were introduced in evidence at the trial. No objection was made by appellee to the introduction of this evidence, and the signatures of Pierre Gray to those notes were admitted. It has been decided repeatedly that if the facts stated in a complaint are such that a judgment thereon would bar another action for the same cause, such complaint will be held sufficient when first attacked on appeal.

The only error relied on for reversal is the overruling of the motion for a new trial. This motion is very voluminous, covering fifty pages of the record. In determining, therefore, what rulings of the lower court are relied on for reversal, this court will consider only such questions arising on the motion for a new trial as have been presented and discussed by appellant in his brief. All other questions will be considered as waived.

Before considering any of the questions presented, it is well to state concisely what points were in issue at the trial. Under the issues as formed, any evidence could have been offered that would tend to defeat the claim on any ground, or to prove the set-off pleaded. The evidence, however, was directed to only three questions of fact, namely, the statute of limitations, the question of advancement, and the facts pleaded by way of set-off.

The notes described in the claim and introduced in evidence were due, as disclosed by the notes themselves, more than ten years before the date on which said claim was filed. The notes were, therefore, prima facie barred by the statute, but appellant sought to prove that interest had been paid by Pierre Gray on both of said notes within the period of the statute of limitations.

The first question presented by appellant is the alleged failure of the court below to consider certain evidence admitted at the trial. As tending to prove payments on the notes within the period of the statute of limitations, appellant introduced in evidence certain indorsements on the back of each of the notes. These indorsements were in the handwriting of the payee of the notes, and were not sufficient,...