Robinson v. Foust

• Decision Date: 08 October 1903
• Citation: 68 N.E. 182,31 Ind.App. 384
• Parties: ROBINSON v. FOUST.
• Court: Indiana Appellate Court

31 Ind.App. 384

68 N.E. 182

ROBINSON

v.FOUST.

Appellate Court of Indiana, Division No. 1.

Oct. 8, 1903.

Appeal from Circuit Court, Montgomery County; Jere West, Judge.

Action by Emma Robinson against John M. Foust, as administrator of the Estate of Aaron Foust, deceased. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Crane & Anderson, for appellant. Whittington & Whittington, for appellee.

ROBINSON, C. J.

Appellant filed a claim against the estate of appellee's decedent, averring, in substance: That in 1880 she was married to Edward A. Kelsey, grandson of decedent, Aaron Foust, and lived with him as his wife until his death on the 14th day of February, 1886, leaving appellant as his only heir. Edward was the only child and heir of Catherine Kelsey, who died in November, 1864, prior to the death of her father, Aaron Foust, leaving Edward, who was about 18 months old, whom decedent took into and maintained in his family until he was about 6 years old, regarding him as a son, and declaring and intending that he should have a child's portion of his estate. At the time of her marriage appellant was given $50 in cash and $150 in personal property by her father. In the fall of 1884 her husband became sick of consumption, and died February 14, 1886. When he became sick he was without any money or property of any kind or means of support, and was unable to work or in any way support himself or appellant, and was soon confined to the house and to his bed, and so continued until his death. In the spring of 1885 appellant had the personal property given her by her father and some $200 or $300 in other property her father had given her. Aaron Foust frequently visited Kelsey while sick, and often requested appellant to provide for him, and to furnish him out of her means with provisions, fuel, medicine, and pay the rent of the house, and during the last few weeks of Edward's life to provide attendants for him, and promised her that if she would do this he would help her as far as he then could, and that he would see to it that she was amply paid therefor, and would make suitable provision for her at his death. Appellant, relying on these promises, and induced thereby, expended all of her means and property in paying for the support and maintenance of her husband and in providing provisions, fuel, and medicines, and paying rent from February, 1885, until her husband's death. Again, in January, 1886, Aaron Foust promised appellant that if she would continue to support her husband, and provide him with provisions, fuel, medicines, rent, and attendants, as she had been doing, he would pay her for what she had already paid out and expended and might thereafter expend, and would make provision for her out of his estate. That on that day, in order to evidence such promise, Aaron Foust executed the following instrument:

“At my death I promise my grandson E. A. Kelsey that his wife shall be paid from my estate three thousand and five hundred dollars if living. [Signed] Aaron Foust.”

Afterwards, on the same day, Aaron Foust proposed to pay the doctor's bill and funeral expenses, and in that event the amount thereof should be deducted from the $3,500 mentioned in the foregoing instrument, and as evidence of such promise executed the following:

“Crawfordsville, Indiana. January 25, 1886. I, Aaron Foust her in prisent of friends and witnes promis my granson Edward A. Kelsey that at my death his wife if living shall have all due him the same as if he was living after his Dr. Bil and Furnel is taken out.

“sign.

“Witness, Albert Kelsey,

“Witness, M. Fahey,

“Witness, Susan E. Coleman.

“Aaron Foust.

“Written by Mike Fahey.”

Both instruments were on that day delivered to appellant's husband. That appellant, induced by these promises, expended her property and money in the support of her husband during the year of 1885 and until the time of his death, and in so doing expended all of her property except a part of her household goods; and at the request of appellee's decedent, and relying upon and induced by the above promises, appellant's father, at her request, paid the house rent for many months, and paid for an attendant during the last few weeks of her husband's life. Prior to and at the time of the execution of the above instruments decedent promised appellant that for what she had done and might thereafter do in supporting her husband she would be paid, and that he intended that she should have out of his estate at his death the sum of $3,500. At that time and at the time of his death Aaron Foust owned property of the value of $26,000, which he disposed of to others, making no provision whatever for appellant.

The rule of the common law that the husband and wife could not deal together rests upon the theory that in legal contemplation the husband and wife are one person, and not upon the theory that the wife is under a legal disability. This rule still prevails except where the Legislature has expressly modified or annulled it, and the question is not whether disabilities have been removed, but whether the rule has been annulled. The common-law status of husband and wife very plainly denies to both the husband and wife a right to compensation for services rendered by either for the benefit of the other. It is quite true that the common-law rights and duties...