Richard v. Marshall County Trust And Savings Co.

• Decision Date: 21 March 1924
• Docket Number: 23,987
• Citation: 143 N.E. 152,195 Ind. 540
• Parties: Richard v. Marshall County Trust and Savings Company, Administrator
• Court: Indiana Supreme Court

143 N.E. 152

195 Ind. 540

Richard v. Marshall County Trust and Savings Company, Administrator

No. 23,987

Supreme Court of Indiana

March 21, 1924

Rehearing Denied December 19, 1924.

1. EXECUTORS AND ADMINISTRATORS.---Evidence.---Receipts of Deceased.---Not Proof of Agreement to Pay Money.---In an action by an administrator on notes payable to decedent and for money had and received, receipts of the deceased containing recitals that they were the first payment, second payment, etc., "in full according to agreement" were not evidence that defendant had bound himself to pay an additional sum annually, and admission of such receipts was error. p. 543.

2. EXECUTORS AND ADMINISTRATORS.---Evidence.---Offer to Pay Money.---Not Proof of Valid Agreement to Pay Annuity.---In an action by an administrator on notes payable to the decedent and for money had and received, proof of an offer by the defendant to pay "two annuities which it was claimed he owed" did not establish that, fifteen years previously, for a consideration, he had promised to pay an annuity of a certain amount each year thereafter, and evidence that he did pay "an annuity" was not evidence that he had become legally bound to pay the same amount for a long series of years before and after the year in which the payment was made. p. 543.

3 EVIDENCE.---Self-Serving Declarations of Decedent.---Admissibility.---In an action by an administrator on notes payable to the decedent and for money had and received, testimony that decedent, at a time and place not stated, when being questioned by an attorney, in answer to a question "What was in the pocket book?" stated that "there was between three and four thousand dollars against" the defendant, was inadmissible, as such statement by the decedent was self-serving and hearsay. p 544.

4. EVIDENCE.---Copy of Decedent's Statement Under Oath.---Admissibility.---In an action by an administrator on notes payable to decedent and for money had and received, an unsigned and unsworn copy of the answers given by the decedent when he was being examined under oath, the copy being made by another than the witness who produced it, when the witness was not present, was not admissible in evidence p. 544.

5. EVIDENCE.---Copy of Decedent's Statement Under Oath.---Not Invited.---In an action by an administrator on notes payable to decedent and for money had and received, the error in introducing an unsigned and unsworn copy of a statement under oath by the decedent when he was being examined in another matter was not invited by the defendant in asking a witness what the decedent said in an examination before a notary public, but not identified as the same examination, as to the contents of a pocket book, there being no reference to a pocket book in the supposed copy of decedent's statement introduced in evidence. p. 545.

6. WITNESSES.---Competency.---Action by Heirs in Place of Administrator under 2809 Burns 1914.---In an action by heirs substituted for the administrator under 2809 Burns 1914, Acts 1899 p. 504, the recovery must be on behalf of the estate as represented by the administrator, and 522 Burns 1914 which forbids heirs testifying in certain actions "by or against them" is not applicable, but the proceeding must be deemed one "in which an executor or administrator is a party" within the meaning of 521 Burns 1914, and the heirs are competent witnesses on behalf of the estate as to matters which occurred in the lifetime of the decedent. p. 548.

From Marshall Circuit Court; Adam E. Wise, Judge.

Action by the Marshall County Trust and Savings Company, as administrator of the estate of Michael B. Zehner, against Jacob A. Richard. From a judgment for plaintiff, the defendant appeals.

Reversed.

D. L. McKesson and S. N. Stevens, for appellant.

Martindale & Martindale, for appellee.

OPINION

Ewbank, J.

This is an appeal from a judgment "that plaintiff, Marshall County Trust and Savings Company, administrator of the estate of Michael B. Zehner, deceased, recover of and from said defendant Jacob A. Richard a verdict returned by a jury in the sum of $ 10,781, together with costs," as modified by the entry of a remittitur of $ 2,329.67, which was signed by "attorneys for plaintiff" at the time the motion for a new trial was ruled on, and by the re-entry of a judgment "that plaintiffs should have and are hereby given judgment against Jacob A. Richard, defendant herein, for the sum of $ 8,451.33, together with the costs."

His motion for a new trial being overruled, the defendant (appellant) excepted and perfected a term appeal, and has assigned that ruling as error. The complaint was in five paragraphs, and demanded payment of certain notes of the defendant alleged to have been held by Michael B. Zehner in his life time, and to have been destroyed after his death, and certain sums of money belonging to said Zehner, alleged to have been received by defendant to Zehner's use. The answer was a general denial and a plea of payment.

Michael B. Zehner died in June, 1917, and the cause was tried and the jury was instructed in March, 1921. It appears without dispute that the wife of appellant was one of the children of said decedent.

Certain receipts bearing the signature of the deceased were read in evidence which contained recitals that they were the "first payment," "second payment," etc. (numbered consecutively) "as described in a certain mortgage given to me by Jacob Richard and wife dated March 26th, 1903. * * * This payment being in full according to the terms and agreement in said mortgage," each of which receipts was for the sum of $ 150, but none of which stated that the payments were made as an annuity, nor that any further payments were to be made. And the only mortgage dated March 26, 1903, that was in evidence purported to secure a note for $ 2,500, due in ten years, with interest, and contained no express agreement except to pay the sum of money thereby secured, without relief. A witness testified that, after the administrator was appointed, defendant came to its president and "offered to pay two annuities which it was claimed he owed," and another witness testified that "the $ 150 per year that defendant paid was an annuity which he paid decedent for $ 3,300 that he and his wife got in 1903." But no agreement or mortgage containing an agreement with reference to an annuity was read in evidence, and there was no evidence that, by an agreement in a mortgage or in any other manner, the defendant ever promised or otherwise bound himself to pay decedent an annuity of $ 150 each year after 1902, whether up to the time of the trial, or to the date of his death.

At the request of the plaintiff, the court gave an instruction to the jury as follows: "If you should find from a preponderance of the evidence in this cause that Michael B. Zehner in his lifetime gave to his daughter, Ida M. Richard, and his son-in-law, the defendant, Jacob Richard, the sum of $ 3,300, and that the defendant, Jacob Richard, promised to pay to said Michael B. Zehner, in consideration of making said gift, an annuity of $ 150 a year each year from and after the date of making said gift, and if you further find that said gift was made in the year 1902, then the court instructs you that the decedent is liable to the estate of Michael B. Zehner, deceased, and the plaintiff is entitled to recover in this action the sum of $ 150 per year for each year from and after the date of the promise to pay said annuity, less any payments thereof which the defendant shall have proved to have been made by a preponderance of the evidence." This was error. Recitals over the signature of the deceased that defendant had paid him sums of money "in full according to agreement" were not evidence that defendant had bound himself to pay additional sums. An offer by defendant in 1917 to pay "two annuities which it was claimed he owed" was no evidence that in 1902, for a consideration, he had promised to pay "an annuity of $ 150 each year" thereafter. And the testimony that what he did pay was "an annuity" was no evidence that he had become legally bound to pay the same amount for a long series of years, before and after the years in which the payments were actually made.

After the evidence on behalf of the defendant had been concluded Harry Unger was called by the plaintiff and testified in rebuttal that, at a time and place not stated when the defendant was not shown to...