Swigert v. Miles

Decision Date08 March 1921
Docket NumberNo. 10650.,10650.
Citation130 N.E. 130,75 Ind.App. 85
PartiesSWIGERT v. MILES et al.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Wells County; E. E. McGriff, Special Judge.

Action for partition and to quiet title by Arla Miles against Minnie Swigert and others. From a judgment for partition denying the claim of the named defendant, the latter appeals. Reversed, with instructions.

Wm. H. Eichhorn, of Bluffton, and Moran & Gillespie, of Portland, for appellant.

Abram Simmons and Charles G. Dailey, both of Bluffton, for appellees.

ENLOE, J.

This action was brought by the appellee Arla Miles, in the Wells circuit court, to have partition of certain lands, described in her said complaint, and also, to have her title thereto quieted as against the claims of certain persons; appellant herein being one of such named defendants.

Various pleadings were filed by the parties thus brought into court and, the issues being finally closed, the cause was submitted to the court for trial, with a request that the court find the facts specially and state its conclusions of law thereon. This was done, and the conclusions of law thus stated were adverse to the appellant herein. The judgment was in accordance with said conclusions of law, and the appellant now prosecutes this appeal upon proper assignments of error as to said conclusions.

It will not be necessary to set out the special findings at length, nor the conclusions of law. This entire cause depends upon the construction to be given to a certain instrument in writing executed by appellant on the 13th day of December, 1909, and which, as set forth in special finding No. 17, is as follows:

“Personally appeared before me, Forrest E. Jump, a notary public, Minnie Swigert, formerly Minnie Dawley, daughter of Horace Dawley, a resident of Wells county, Indiana, and says that she is the daughter of Horace Dawley, and that her name is now Minnie Swigert and that she is a resident of Wells county, Indiana, and that on the first day of February, 1909, she received from her father, Horace Dawley, thirty-five hundred ($3,500.00) dollars, which she agreed should be her partial share of all real estate owned by her father, Horace Dawley, at his death, and she hereby agrees to accept the same as such share in said real estate. Minnie Swigert hereby agrees that this shall be her receipt for the above-named amount of money, and receipt of the same is hereby acknowledged as for the purpose above set out, and that the same is her own voluntary act and deed.”

The said instrument was signed by said Minnie Swigert, and there is the usual jurat which follows an affidavit, attached to said statement. In short, the statement above seems to have been made by her under oath.

[1] It is well settled in this state that a child may, by contract with the parent, waive and bar its right to participate as heir, in the distribution of the estate left by the ancestor. Gray v. Bailey, 42 Ind. 349;Brown v. Brown, 139 Ind. 653, 39 N. E. 152. Such release may also cover personal property only. Lockyear v. Savage, 2 Strange, 947; Medcalfe v. Ives, 1 Atkyn, 63.

The question in this case is simply this: Did the appellant, Minnie Swigert, by agreement with her father, as shown by the above instrument, receive said sum of money, in full settlement of her future interest, as heir, in and to her father's real estate, of which he should die seized? If she did, then the court did not err in its conclusion of law, and the judgment is right. But if said instrument fails to show that she did so agree, or shows to the contrary, then the court erred in its said conclusions of law, and this cause must be reversed.

[2] In Blythe et al. v. Gibbons, 141 Ind. 332, 35 N. E. 557, it was said:

“Whether we are considering an agreement between parties, a statute, a constitution, a judgment or order of court, with a view of its interpretation, the thing which we are to seek is the thought which it expresses. To ascertain this, the first resort in all cases is the natural signification of the words employed in the order of grammatical arrangement in which the framers of the writing have placed them. If thus regarded, the words embody a definite meaning, which involves no absurdity and no contradiction between different parts of the same writing, then that meaning, apparent on the face of the writing, is the one which alone we are at liberty to say was...

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