Lindsay v. Glass

• Decision Date: 06 June 1889
• Docket Number: 14,705
• Parties: Lindsay v. Glass
• Court: Indiana Supreme Court

21 N.E. 897

119 Ind. 301

Lindsay v. Glass

No. 14,705

Supreme Court of Indiana

June 6, 1889

From the Bartholomew Circuit Court.

The judgment is affirmed, with costs.

G. W Cooper and C. B. Cooper, for appellant.

F. T Hord, M. D. Emig and R. W. Harrison, for appellee.

OPINION

Mitchell, J.

Eliza Glass brought this action against James Lindsay to recover certain sums of money derived from her deceased husband's estate, which she charges that the defendant received and appropriated to his own use.

There is no controversy but that the defendant received $ 2,060 of the plaintiff's money from various sources, but he denies her right to recover, because he says that, in the month of November, 1884, the plaintiff being very old, feeble, and totally blind, and without a home, agreed with the defendant who is her brother, to give him all her property in consideration of his agreement to furnish her a good home and support and take care of her during the remainder of her natural life. He asserts that, in compliance with his agreement, he kept the plaintiff from the date above mentioned until in the month of February, 1887, at which time she left his house, and has not since returned, although he has been all the time and still is ready and willing to perform his part of the contract.

There was a verdict and judgment for the plaintiff below for $ 1,502.12, and the sole question here relates to the propriety of the ruling of the court in overruling the defendant's motion for a new trial.

It is well to observe that contracts made by persons in the helplessness of misfortune and distress, or under the infirmity and decrepitude of old age, through which a claim is asserted to their property in consideration of an unexecuted promise of support and maintenance, are peculiar in their character and incidents. One who is aged and infirm, without a home, and in a state of dependence upon another, to whom property is conveyed or transferred in consideration of an agreement for support, is scarcely in a situation to exercise the care for his own interest and protection that usually characterizes the conduct of persons in making ordinary contracts. Such contracts, involving continuing care and personal service, and requiring for their proper execution that the parties concerned should occupy toward each other relations of confidence and esteem, can not be specifically enforced while they remain executory. Ikerd v. Beavers, 106 Ind. 483, 7 N.E. 326.

To compel one to accept the alternative of receiving support under an improvident contract, or to become a subject of charity, might often result in great oppression. Such contracts belong to a class the specific enforcement of which courts of chancery do not undertake. Parties who enter into such agreements must rely upon a continuance of the confidence and esteem which induced the arrangement in the beginning, or take their chances to recover damages if the contract is repudiated.

For the protection of persons who thus dispose of their property courts are inclined to treat the transfer or conveyance, so long as the contract for support remains executory, as having been made upon the condition subsequent that the promise to furnish care and maintenance shall be fully and fairly performed. Richter v. Richter, 111 Ind. 456, 12 N.E. 698; Bogie v. Bogie, 41 Wis. 209; Rowell v. Jewett, 69 Me. 293; Eastman v....