Orth v. Orth
Citation | 145 Ind. 184,42 N.E. 277 |
Parties | ORTH et al v. ORTH et al. |
Decision Date | 26 November 1895 |
Court | Supreme Court of Indiana |
OPINION TEXT STARTS HERE
Appeal from circuit court, Carroll county.
Action by Eliza Gertrude Orth and others against Harry A. Orth and others to enforce a trust, and to recover damages for the violation thereof. Defendants had judgment, and plaintiffs appeal. Affirmed.
George Burry and Charles C. Spencer (T. F. Palmer, John H. Gould, and Geo. R. Eldridge, of counsel), for appellants. Wallace & Baird, for appellees.
The late Hon. Godlove S. Orth, by his last will, devised and bequeathed to Mary Ann Orth, who was his second wife, all of his real and personal property, without condition, reservation, or limitation. Bearing the date of said will, and accompanying the same, was this letter from the testator to his said wife: In December, 1882, he departed this life, leaving surviving him his widow, said Mary Ann Orth, who elected to take under the will; Harry A. Orth and Mary Orth McNutt, his children by said Mary Ann; and William M. Orth, a son by his former wife. Since the death of the testator said Mary Ann Orth and William M. Orth have departed this life intestate. Harry A. Orth is administrator de bonis non, with the will annexed, of the estate of said testator, and is administrator of the estate of said Mary Ann Orth. William M. Orth left surviving, as his only heirs, the appellants, Eliza Gertrude Orth, his widow, and Lizzie Ray Orth, his daughter; and the appellant Spencer is administrator of said William's estate. Said appellants instituted this suit, in eight paragraphs of complaint, against the appellees, Mary Orth McNutt and Harry A. Orth, personally and as administrator of said two estates of his father and his mother. Harry A. Orth and Mary Orth McNutt severally demurred to each paragraph of the complaint, stating as causes of demurrer that neither paragraph stated facts sufficient to constitute a cause of action, and that several causes of action were improperly joined. Harry A. Orth, in his capacity as administrator de bonis non, demurred separately to each paragraph of complaint; stating as causes of demurrer a want of sufficient facts, a want of jurisdiction over his person, and a want of jurisdiction of the subject-matter of the action. Pending the demurrers the plaintiffs dismissed their action as to the estate of Mary Ann Orth, and thereupon the court sustained said several demurrers to the several paragraphs of complaint. Upon that ruling arise the only questions for review.
The first paragraph of complaint alleged the execution of the will and of said letter, both of which were exhibited by reference, and alleged that Mary Ann Orth knew the contents of said letter, and promised said Godlove to carry out the requests and intention expressed in said letter; that said Godlove during his last illness would have made other provisions in favor of said William, but that Mary Ann, Harry A., and Mary O. conspired to deprive William of any interest in the estate, and did, by promises and protestations, dissuade said Godlove from making changes in his will, and that they did, during his last sickness, exclude from his room and bedside the friends of William, and persons who might secure a change in said will; that a few days before his death said Godlove called to his bedside his said wife and his three children, and, in the presence of each and all of them, had said wife and said Harry A. and Mary O. to promise to carry out the wishes expressed in said letter. It is also alleged that parts of the estate were converted by Mary Ann Orth, and parts were made over to and converted by said Harry A. and Mary O.; that Mary A., when executrix, and Harry A., as administrator de bonis non, made no inventory and no accounting to the court of the assets of the estate, or any disposition of the same. An accounting and partition are prayed, upon the theory that the letter and the oral promises created a trust in favor of William M. in the property of the estate of his father. The second paragraph alleges substantially the same facts, but adds that after the death of Godlove S. Orth his widow, Mary Ann Orth, stated to William M. Orth that she was intending and endeavoring to treat all the children alike, according to the expressed wishes of his father; that, pursuant to that expressed intention and her promise, she procured a will to be written which to some extent would carry out such wishes; that said Harry A. and Mary O., further contriving to defraud William of that portion of the estate of his father which after the death of Mary Ann would rightfully belong to him or his heirs, by importunities, and by appealing to the maternal feeling of said Mary Ann Orth in an improper manner, before and during her last sickness, postponed from time to time the execution of such will until Mary Ann Orth died without making provision for said William. By this paragraph damages are sought. The third paragraph differs from the first in alleging a promise by Mary Ann Orth to William Orth, after the death of Godlove S. Orth, to carry out the wishes expressed in said letter, and frequent requests by William M. that she do so, and that she died having neglected to comply with that promise. Damages are claimed by this paragraph. The fourth paragraph pleads the facts alleged in the second paragraph, but upon the theory of a trust, as in the first paragraph, seeks an accounting and partition. The fifth paragraph alleges substantially the facts pleaded in the first, second, and third paragraphs, and demands an accounting and partition. The sixth paragraph differs from the third in alleging that the promise of Mary Ann Orth to William M. to carry out the wishes of his father as expressed in said letter was induced by a threat of said William to sue her for the enforcement of his claim, and that by reason of her said promise, and in consideration thereof, he desisted from suing as he had intended. An accounting and partition were prayed. The seventh paragraph alleged the facts of the sixth, and, instead of an accounting and partition, sought damages. The eighth paragraph was the same as the sixth, omitting the allegation that William M. Orth withheld suit in consideration of the promise of Mary Ann Orth to provide for him, and that she had died without executing her will. In addition to the facts pleaded in the sixth paragraph, it was alleged that Harry A. and Mary O. wrongfully converted to themselves the property of Godlove S. Orth remaining at the death of Mary Ann Orth. The demand was for damages. The complaint covers 90 pages of typewritten legal cap, and the paragraphs differ so slightly that we have deemed it advisable to state them briefly, rather than to set them out at length.
Our statute of wills (section 2746, Rev. St. 1894; section 2576, Rev. St. 1881)...
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