Shover v. Myrick

Decision Date18 February 1892
Docket Number420
Citation30 N.E. 207,4 Ind.App. 7
CourtIndiana Appellate Court

From the Marion Circuit Court.

Judgment affirmed.

H. J Everett, for appellants.

V Carter, for appellee.



This appeal is taken from the allowance of a claim filed against the estate of Henrietta Hubbard, deceased.

The facts upon which the claim rests are as follows: Henrietta Hubbard, the decedent, and Jesse Hubbard, the appellant, were husband and wife, and Dolly Myrick, the appellee, was the mother of Henrietta. In 1883 the appellee was the owner of an undivided third part of a forty-acre tract of land in Morgan county, Indiana, as the widow of her deceased husband, and the decedent and her brothers and sisters were the owners of the remaining two-thirds of said tract. At that time the appellee and her said daughter Henrietta entered into an agreement by which the latter undertook to support and care for her mother during the remainder of her lifetime, in consideration of which the appellee conveyed to Henrietta her interest in said farm. Shortly afterwards Henrietta purchased of her brothers and sisters the residue of the farm, thus becoming the owner of the entire forty acres. The appellee commenced living with her daughter at that time, and continued to do so until October 31st, 1889 when Henrietta died. The husband of Henrietta then broke up housekeeping, and ceased to provide and care for the appellee, and she left his family and went elsewhere to seek a livelihood. The appellant Shover was appointed administrator of the estate of said decedent, and the appellee filed her claim against said estate, demanding an allowance in some adequate amount for the value of the care and support due her from her daughter during the residue of the claimant's life.

The cause was tried by the court, and an allowance was made the appellee of $ 800.

The appellant Hubbard, as the surviving husband and heir of the decedent, joined in the defence, and appeals under section 2454, R. S. 1881. The administrator, on the 7th day of January, 1891, dismissed his appeal, and the same is therefore now prosecuted by Hubbard alone.

The only error assigned is the overruling of the motion for a new trial.

Two reasons are urged why that motion should have been sustained, viz.: 1. Because the allowance is excessive; and, 2. Because the court erred in admitting testimony as to what the mortality tables show is the expectancy in a term of life at the age of 80 and 81 years.

The evidence tends to prove that according to the established mortality rates, as gathered from tables prepared by life insurance companies, a person in good health at the age of 80 years has an expectancy of 4 4/10 years, and at the age of 81 years of 4 1/10 years. The evidence also tended to show that the appellee was about 81 years old at the time of the trial and in good health for a person of that age.

From the time Henrietta Hubbard died, viz.: October 31, 1889, until the end of the appellee's expectancy, there would be a period of at least five years of a failure to maintain and support the appellee, as was agreed upon in her contract with her daughter. An allowance of $ 800 for five years would be equivalent to $ 160 per year. There was evidence that it would be worth from $ 16 to $ 25 per month to furnish such support. At an estimate of $ 16 per month the value of the services and support for a year would amount to $ 192, and for five years to $ 960. We think, therefore, the evidence abundantly sustains the finding as to amount. We can not agree with the appellants' counsel that the value of the support yet due Mrs. Myrick must be measured by the value of the lands she conveyed to her daughter in consideration of such support. We presume if the appellee had died a few days after the contract was entered into, her other heirs would not have been in any position to claim a portion of the land, or its equivalent, because of the inadequacy of the consideration. Neither can the representatives of the decedent now claim that because of the long duration of appellee's life there should be a diminution of the liability to support and care for her. If such a rule were to obtain, there is no reason why the appellee could not have been turned out at the end of the first year, if it could have been shown that a year's support was all the appellee's interest in her farm was worth. There is neither reason nor justice in such a construction, and no authority has been referred to which it is claimed sustains the doctrine contended for. On the other hand, it is well settled that where the consideration of a contract is agreed upon between the parties and the same is of an indeterminate value, the courts will not substitute their judgment for that of the parties, but will uphold the contract unless it be tainted with fraud. Keller v. Orr, 106 Ind. 406, 7 N.E. 195; Price v. Jones, 105 Ind. 543, 5 N.E. 683; Vigo, etc., Society v. Brumfiel, 102 Ind. 146, 1 N.E. 382; Wolford v. Powers, 85 Ind. 294.

When the decedent entered into the agreement and received from her mother the conveyance of the land, she accepted the terms thereof, including both that which was beneficial and that which was burdensome. Her contract to support and care for the appellee was a continuing one, and upon a breach thereof the latter had a right to recover full and final damages, including the entire expense for such support and care, not only to the time of the commencement of the action, but during the remainder of her life. Schell v. Plumb, 55 N.Y. 592. This must be true, whether the breach arose from some cause during the life of the decedent or because of her death. In the latter case the remedy is, of course, against her estate. The measure of damages for such breach is the value of the support and care from the time of the breach, which, in this case, is the time of the intestate's death, to the day of the trial, and the present worth of such support and care from the day of the trial to the end of the life in question.

This brings us to the consideration of the second point relied on by the appellant for the reversal of this cause, viz.: The admission of testimony in reference to the appellee's expectancy.

The question we are called upon to determine is as to the proper mode of proving the present value of what is equivalent to an annuity for life. In the present case, as we have already seen, the evidence was that it was worth at least $ 16 per month to support and care for the appellee, and that her age was about eighty-one years. If we accept the lowest estimate, then, as the correct one, the appellee was entitled to a life annuity, chargeable to the estate of her deceased daughter, of $ 192. What was the correct method of establishing the present worth of this annuity? It appears from the record that certain "American Mortality Tables" were made use of upon the trial, not strictly as a matter of evidence, perhaps, but to refresh the memory of a witness who had been placed upon the stand as an expert upon the subject of life insurance, and the probable longevity of a person at a certain age. The witness, having shown himself competent to testify in relation to the subject under investigation, was permitted to state, over the appellant's objection and exception, that a person in good health at the age of eighty years had an expectation of 4 4/16 years, and at the age of eighty-one years had an expectation of 4 1/16 years. The appellant insists that this was error.

The inquiry is one of more than ordinary importance, and we can not but regret our inability to find some precedent in the decisions of our Supreme Court. Disputed questions constantly arise in which it becomes necessary to settle in some legal manner the present worth of estates maturing in the future. Besides the case presented by this appeal, there are those where life-estates have to be sold to make cash assets; or where the value of the estate of one who takes after a life in being is to be ascertained; or where a sum of money is directed to be paid after the death of a person then living, and it is sought to find its present value; or where the present worth of a life policy is to be established. In these and in all other controversies where the entire body of an estate is to be disposed of at once in proportion to certain interests in the same, depending upon some future contingency or contingencies, it frequently devolves upon courts and juries to deal with this problem. Of course it is impossible, even with our present advanced facilities in vital statistics, to arrive at anything like exactness in results in these adjustments. The most and the best that can be done is to approximate as nearly as may be a correct conclusion.

The use of life and annuity tables has long been resorted to by the courts of this country and England in making estimates of present values. The business of life insurance and the sale of annuities by societies and corporations proved to be so successful among our British ancestors that the government itself, by the statute of 5 W. & M. ch. 5 and 20, assumed the undertaking for the purpose of raising some of its revenues. Statistics concerning the longevity of human lives were necessary, therefore, to estimate the required charges for such protection, and these statistics were gradually arranged by mathematicians into "tables," from which the average duration of life at certain ages and conditions could be...

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