Purviance v. Purviance

• Decision Date: 10 December 1895
• Docket Number: 1,833
• Citation: 42 N.E. 364,14 Ind.App. 269
• Parties: PURVIANCE, ADMR., v. PURVIANCE
• Court: Indiana Appellate Court

42 N.E. 364

14 Ind.App. 269

PURVIANCE, ADMR., v. PURVIANCE

No. 1,833

Court of Appeals of Indiana

December 10, 1895

Petition for rehearing overruled January 29, 1896.

From the Huntington Circuit Court.

Judgment reversed.

J. Q Cline, Kenner & Lesh, for appellant.

Sayler Sayler & Sayler, for appellee.

OPINION

REINHARD, J.

This action is in the nature of a claim, filed by the appellee against the estate of the appellant's decedent, Elmina E. Purviance.

One of the specifications of error is that the complaint does not state facts sufficient to constitute a good cause of action. There was no demurrer to the complaint, nor was its sufficiency tested in any other way.

The complaint or statement of appellee's claim is as follows, omitting the mere formal parts:

"The estate of Elmina E. Purviance, deceased.

"To James A. Purviance, Dr.

"To work and labor from the day of August, 1861, to the 19th day of August, 1878, at the rate of $ 11.90 1/2 per month--$ 1,000.00, and six per cent. per annum interest thereon for seventeen years. Said labor was done and performed under the following circumstances, to-wit: John W. Purviance and the said Elmina E. Purviance, deceased, were husband and wife and were childless. About the 14th day of February, 1861, the said John W. Purviance and Elmina Purviance, his wife, took this claimant, who was then a minor, to live with, and work for, and serve them, the said John W. Purviance declaring at various times that he would make suitable provision for this claimant in his will, in payment of said work and labor. The said John W. Purviance died about the 27th day of November, 1887, without making any will whatever, and without making any provisions whatever, for this claimant, or for paying him anything whatever for his said work and labor. After the said work and labor was so performed as aforesaid, the said John W. Purviance and his said wife, Elmina E. Purviance, conveyed by deed all of the real estate in the name of the said John W. Purviance to Joseph G. Purviance, without any consideration whatever, not leaving $ 600.00 worth of property in his name subject to execution for the payment of his debts or subject to bequest by him, and whereupon the said Joseph G. Purviance conveyed all of said real estate by deed to the said Elmina E. Purviance without any consideration whatever. The said John W. Purviance left the said Elmina E. Purviance, deceased, his only heir at law, who took and held all the property which the said John W. Purviance left at his death, which together with said real estate was of the probable value of $ 4,000.00, as such sole heir at law. The said Elmina E. Purviance, deceased, promised the claimant that if he would not bring any suit or claim against the estate of the said John W. Purviance, deceased, for his said work and labor, she would provide for the full payment of his said work and labor out of her estate by her last will, and in consideration of said promise the claimant did not bring any suit or claim for said work and labor against the estate of the said John W. Purviance, but relied on said promise of the said Elmina E. Purviance, deceased, for payment for said work and labor. The said Elmina E. Purviance died on the 3rd day of June, 1894, without making any will whatever and without making any provision whatever for payment for said work and labor or any part thereof. As a detail of the said promise of the said Elmina E. Purviance, deceased, to provide for the payment of said work and labor out of her estate by her last will, the said Elmina E. Purviance, deceased, promised to devise all her property to the children who had lived with her, to-wit: This claimant, Anna Mayne and Mina Huff, and John Hutsell, as they had all helped to make said property and were loved by her. The said Elmina E. Purviance, deceased, left an estate of the probable value of $ 4,000.

"Wherefore," etc.

Obviously the complaint proceeds upon the theory that the decedent, who was the widow of the original promisor, agreed to pay the claim, if the appellee would refrain from bringing suit, or filing the claim against the estate of her deceased husband. Had the claim been prosecuted within the statutory period against the estate of John W. Purviance, deceased, it would probably have been sufficient to entitle the claimant to recover an allowance, although the complaint does not aver an express promise to pay in consideration of work and labor performed, but only a "declaration at various times" that he (John W. Purviance) would make provision in his will, etc. Taggart v. Tevanny, 1 Ind.App. 339, 27 N.E. 511; Puterbaugh, Admx., v. Puterbaugh, 7 Ind.App. 280, 33 N.E. 808; Knight, Admr., v. Knight, 6 Ind.App. 268, 33 N.E. 456. But as against the appellant's decedent the claim could not be maintained except for the promise alleged to have been made by her, that if appellee would not pursue the estate of her deceased husband, she would pay it, or provide for appellee out of her own estate. This promise was valid and rested upon a sufficient consideration. But for such promise the appellee might have found his remedy by making his claim out of the assets of the estate of John W. Purviance, deceased, and to the extent of any allowance against said estate, the distributive share of the appellant's decedent would have...