Huffmond v. Bence

• Decision Date: 24 April 1891
• Docket Number: 14,983
• Parties: Huffmond et al. v. Bence, Administrator
• Court: Indiana Supreme Court

27 N.E. 347

128 Ind. 131

Huffmond et al. v. Bence, Administrator

No. 14,983

Supreme Court of Indiana

April 24, 1891

From the Putnam Circuit Court.

The judgment is affirmed, at costs of the appellant.

D. E Williamson and A. C. Daggy, for appellants.

S. A Hays, for appellee.

Olds C. J. Coffey, J., took no part in the decision of this case.

OPINION

Olds, C. J.

Jane Rudisill and her husband, David Rudisill, each owned a town lot in the city of Greencastle, and on the 11th day of January, 1881, they joined in a deed and conveyed both of said lots to their daughter, the appellant Surrilda Huffmond. The consideration for such conveyance, as stated in the deed was one dollar, and in consideration of said Surrilda having boarded, nursed, waited upon and taken care of said Jane and David during the two years before that date last past, and the further consideration that she, said Surrilda, agrees to continue to board, nurse, and take proper care of said Jane and David during their natural lives, reserving to each of said grantors the possession and control by each of the respective lots owned by each during their natural lives. David died intestate. The appellee, Bence, was appointed administrator of his estate, and he filed a claim against said estate in his own favor for one hundred dollars for medical and surgical treatment rendered to the said David in his last sickness. The said Bence filed a complaint against the estate, making the appellant and her husband parties, in which is alleged the conveyance of said real estate by the said Jane and David Rudisill to said appellant in consideration of the agreement stated in said deed; that at the time of said conveyance, prior thereto, and up to the date of his death, said David was afflicted with strangulated hernia, and was subject to frequent attacks of the same; that nursing and taking proper care required that when said David was attacked and afflicted with strangulated hernia it be reduced; that after said conveyance it was mutually agreed between said appellant and David that they should sell said lot, the title to which had been in David prior to the conveyance to appellant, and that the proceeds thereof should be invested in other real estate, the title to be taken in the appellant, reserving the use and control to David during his life, under the same conditions, agreement, and for the same consideration, as the first lot so conveyed as aforesaid was conveyed to said appellant, and that in pursuance of said agreement they did sell said lot, and joined in a deed, and conveyed the same to the purchaser, and purchased with the proceeds thereof another tract of land, and took the title to the same in the appellant, granting to the said David the use and control of the same during his life, simply substituting the real estate purchased for that sold under the same agreement to nurse and properly take care of the said Jane and David; that David took possession of said tract so purchased, and held the same until his death, when the appellant took possession, and has ever since held the same; that in 1883 the said David was attacked with strangulated hernia, and was in great need of medical and surgical aid and treatment to be relieved, and have the hernia reduced; that he called upon the appellant to provide him with proper medical aid to relieve him, which she neglected and refused to provide for him; and while so afflicted he called upon the said claimant, Bence, and he reduced the hernia, and rendered the services of the value of one hundred dollars, which he seeks to recover; that such services so rendered were necessary to the proper nursing and taking proper care of said David, as the appellant had contracted to do; that when said services were so rendered, and at the date of the death of said David, he had no other property than that conveyed as aforesaid; and said claimant asks that he have judgment against the estate, and said Surrilda Huffmond for the amount of his claim, and that the same be declared a lien upon all of said real estate so conveyed to and now owned by the said appellant, describing it, and that the same be subjected to sale for the payment of said claim.

The appellant demurred to the complaint for want of facts, and upon the grounds that she was an improper party.

It is contended that under the contract as stated in the deed the appellant was not under any obligation to furnish medical aid. We can not concur in such a construction of the contract.

It appears from the averments in the complaint that Jane and David Rudisill conveyed to their daughter, the appellant, all the real estate they owned, and being all of their property, she agreeing in consideration therefor "to board, nurse and take proper care of them, the said Jane Rudisill and David Rudisill, during their natural lives." The agreement to board, nurse, and take proper care included the doing and furnishing to them whatever was reasonably necessary for their subsistence and comfort. It would be unreasonable to so construe such an agreement as that the child might stand by in times of sickness and permit the parent to suffer and die for want of reasonable and proper medical aid, and yet not be liable for a breach of the contract. Such treatment and neglect would not be a compliance with the contract either in regard to the nursing or taking proper care. To nurse and take proper care, in the sense in which they are used in this agreement, mean to supply the grantors with and to do for them whatever was necessary in case of sickness to restore them to health again; and, if the appellant could not supply such wants or render such services in person, she was bound to provide them such...