Miller v. Miller

• Decision Date: 17 April 1901
• Citation: Miller v. Miller, 26 Ind. App. 498, 60 N.E. 176 (Ind. App. 1901)
• Parties: MILLER v. MILLER et al.
• Court: Indiana Appellate Court

26 Ind.App. 498

60 N.E. 176

MILLER

v.MILLER et al.

Appellate Court of Indiana.

April 17, 1901.

Appeal from circuit court, Dearborn county; W. T. Friedley, Special Judge.

Suit by Daniel H. Miller against Ira L. Miller and others. From a decree in favor of defendants, complainant appeals. Affirmed.

W. R. Johnston, for appellant.

ROBY, J.

The appellant, Daniel H. Miller, was the owner of certain real estate in the city of Lawrenceburg. His wife, Caroline M. Miller, was the daughter of Johann J. Hauck. Said Hauck held a mortgage upon said real estate to secure two notes,-one for $500, dated August 30, 1869, due 90 days after date, and one for $5,675.45, dated February 1, 1876, and due in one year from date, all with interest. On the last-named date appellant and his wife executed a mortgage on said real estate to said Hauck to secure the indebtedness evidenced by said notes. October 28, 1879, Johann J. Hauck made his will, and in February, 1880, died. The will was duly probated and is in full force. The fourth item of this will was in the following words: “Item 4. I give, bequeath, and devise unto my wife, in trust for, and for the sole use and benefit of, my daughter Caroline M. Miller and her children now born or hereafter to be born, the mortgage claim which I have against her and her husband, Daniel H. Miller, on the property they live on, on the north corner of High and Vine streets, including everything on the lot, in the city of Lawrenceburg aforesaid. I release them from the payment of all interest now due or to become due hereafter upon the principal of the debt, so long as they remain husband and wife and live together as such, but mean to keep the principal alive for the use and benefit of my said daughter and her said children, as hereinbefore expressed, during the lifetime of my said daughter, and, in case she die before her husband, for the use and benefit of their [her] children.” Appellant brought this action in the Dearborn circuit court, setting up the aforesaid facts, and averring that the will was executed without his knowledge, that he never consented to any change of the terms of the notes or mortgage, that he never agreed that the notes or mortgage should be kept alive for the benefit of any one, and that the same were, before the commencement of the action, fully barred by the statute of limitations. Wherefore he prayed that his title be quieted and the mortgage be canceled. His wife, Caroline, her children, and Anna M. Hauck, the...