Moore v. Harrison

• Decision Date: 26 March 1901
• Citation: 59 N.E. 1077,26 Ind.App. 408
• Parties: MOORE v. HARRISON.
• Court: Indiana Appellate Court

26 Ind.App. 408

59 N.E. 1077

MOORE

v.HARRISON.

Appellate Court of Indiana.

March 26, 1901.

Appeal from circuit court, Hamilton county; John F. Neal, Judge.

Action by Jasper Moore, as administrator of the estate of Joseph Green, deceased, against William Harrison, as administrator of the estate of Abigail Green, deceased. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Christian, Christian & Cloe, for appellant. Frank E. Gavin, Theo. P. Davis, James L. Gavin, and C. N. Griffin, for appellee.

HENLEY, C. J.

This action was commenced by appellant's decedent, Joseph Green, during his lifetime, against appellee, Willian Harrison administrator of the estate of Abigail Green, deceased. The complaint or petition avers, in substance, that Abigail Green departed this life intestate on the 17th day of September, 1898, leaving surviving her the petitioner, her husband, “and children, her heirs”; that she left personal property of the probable value of $3,500 in cash and notes, which are in the hands of her administrator; that the petitioner, as the widower of said decedent, is entitled to one-third of said personal property; that the children and grandchildren of said decedent claim all of said property, and the administrator of said estate is claiming the right to pay to said children and grandchildren all of said personal property, and refuses to recognize the right of the petitioner to any part of said decedent's property. The relief asked is that the court order the administrator of said Abigail Green's estate to pay over to the petitioner, upon the final settlement of said estate, one-third of all moneys received therefrom. This pleading was not tested in the lower court by demurrer or otherwise, and is not challenged here. Appellee appeared by counsel, and filed an answer in three paragraphs. A demurrer was sustained to the third paragraph of answer. The first paragraph was a general denial. The second paragraph, which was held sufficient below, was as follows:

“Defendant says that the plaintiff and said decedent entered into a mutual agreement before their marriage, in consideration of their marriage together, that the survivor of them should not take, as heir of the one who should decease first, any portion whatever of his or her estate so dying, which agreement was not at the time reduced to writing; that after their said marriage, and during their said marriage, to wit, on the 9th day of September, 1898, plaintiff and said decedent, who was then living, had said agreement reduced to writing, and signed and executed the same as evidence and ratification of their said antenuptial agreement, for the purpose of carrying out and effectuating said agreement, a copy of which agreement is as follows, to wit:

‘This agreement witnesseth that, in the event Abigail Green dies first, Joseph Green is not to have or take any interest in her estate, and that, in the event Joseph Green dies first, Abigail Green is not to have or take any interest in his estate.

September 9, 1898.

+-------------------------------------+
                ¦               ¦       ¦her  ¦       ¦
                +---------------+-------+-----+-------¦
                ¦‘’[Signed]     ¦Abigail¦X    ¦Green. ¦
                +---------------+-------+-----+-------¦
                ¦               ¦       ¦mark.¦       ¦
                +---------------+-------+-----+-------¦
                ¦               ¦       ¦his  ¦       ¦
                +---------------+-------+-----+-------¦
                ¦Theo. P. Davis.¦Joseph ¦X    ¦Green.'¦
                +---------------+-------+-----+-------¦
                ¦               ¦       ¦mark.¦       ¦
                +-------------------------------------+
                

-Wherefore defendant asks to be discharged, with costs.”

After the cause was at issue, and before the trial, the said Joseph Green died, and upon motion the administrator of his estate was substituted as plaintiff. There was a trial and finding in favor of appellee, defendant below.

The questions discussed upon appeal arise upon the ruling of the lower court in overruling appellant's demurrer to the second paragraph of appellee's answer, and in overruling his motion for a new trial. Some of the undisputed facts were that, in the year 1880, appellant's decedent, Joseph Green, was a widower, aged about 70 years, and appellee's decedent was a widow, aged about 60 years. They desired to marry. They each had children by a former marriage. In consideration of their contemplated marriage, they entered into an oral antenuptial contract. This contract was to the effect that the survivor, whether it be husband or wife, was to take no interest or share of the estate of the deceased one, and the property of the husband upon his death was all to go to his children, and the property of the wife at her death was all to go to her children. They were married in a few days after the contract was made. After their marriage, in order to preserve and make certain their oral antenuptial contract, they executed the written contract, a copy of which is...