OPINION
REINHARD, J.
On the
23d day of November, 1888, the appellee, Lottie R. Wilsey,
filed in the office of the clerk of the
Floyd Circuit Court a claim against the estate of
appellant's decedent. This claim consisted of a written
instrument, purporting to have been executed by the decedent
and the appellee, and the ordinary affidavit required by the
statute in the verification of claims filed against
decedents' estates.
The
instrument referred to is as follows:
"Article
of agreement made and entered into by and between Simeon K.
Wolfe and Lottie R. Wilsey, both of the city of New Albany,
Floyd county, Indiana, on this first day of March, 1888, as
follows, to wit: Whereas, in the year 1877, the said Lottie
R. Wilsey placed in the hands of said Simeon K. Wolfe the sum
of twenty-five hundred dollars, which he was to use or invest
for her, and account to her for the increase; and whereas,
said sum now amounts to the sum of five thousand dollars, and
the said Lottie R. Wilsey has, ever since the 4th day of
January, 1879, occupied the house and lot in which she now
resides, being the east half of lot numbered twenty-one (21),
on Upper High street, south side, between Upper Second, or
Bank, street, and Upper Third street, in the city of New
Albany, Floyd county, Indiana, with the understanding and
agreement that she was to hold and occupy the same so long as
said money in the hands of said Wolfe shall remain
unaccounted for and unpaid to her, or to such person or
persons as she might direct: Now, in mutual settlement, and
arrangement, of all past financial transactions between us,
we mutually agree, as to the future, to the following
stipulations, that is to say: Said sum of five thousand
dollars is to remain in his hands so long as we both shall
live, and upon the death of either party said matter shall be
closed up in the manner hereinafter provided, that is to say:
If the said Lottie R. Wilsey shall be alive at the time of
the death of the said Simeon K. Wolfe, the whole amount of
said moneys remaining in his hands is to be paid to her, said
amount to be ascertained by reference to the current yearly
indorsements on each copy of this contract,
as
hereinafter provided for; but if the said Lottie R. Wilsey
shall die during the lifetime of the said Simeon K. Wolfe,
then and in that event the said Simeon K. Wolfe is to account
for and pay the sum of twenty-five hundred dollars, which, in
the event of the death of the said Lottie R. Wilsey before
the death of the said Simeon K. Wolfe, is to be in full
accord, satisfaction, and discharge of said fund in his
hands, and all accumulations thereof, and all said funds
above said sum of twenty-five hundred dollars is to be
retained by him in consideration for his services in the
management of said business; the said Lottie R. Wilsey is to
hold and retain possession of said above-mentioned house, and
half lot now occupied by her until said moneys are all
accounted for and paid to her; not, however, to exceed beyond
her lifetime, if she shall die before said Wolfe, or beyond
the payment to her of said moneys, if said Wolfe shall die
first. The rents therefor, and the accumulations on said five
thousand dollars, are to be mutually settled annually, and a
statement of the balance, or accrued amount, is to be
indorsed on each copy of this contract, and signed by the
parties, and in the event of the death of the said Simeon K.
Wolfe before the death of said Lottie R. Wilsey the amount of
such balance, or accumulated amount last so indorsed, shall
be the amount which the legal representatives of the said
Simeon K. Wolfe shall account for and pay to said Lottie R.
Wilsey, one-fifth of such amount to be due and payable in one
year after the death of said Wolfe, and one-fifth part in two
years after such death, and the remaining three-fifths parts
thereof in five years after such death. In the events
provided for above, of the death of said Lottie R. Wilsey
during the lifetime of the said Wolfe, in which he is to pay
the sum of twenty-five hundred dollars only in full of said
liability on account of said funds in his hands, it is agreed
that he shall pay out the same as follows: First. Any sum, at
his discretion, between six hundred dollars
and one thousand dollars he is to pay for funeral and other
expenses and charges against her, a burial lot and a
monument, such as he shall see proper to cause to be erected
over her grave, and the residue of said twenty-five hundred
dollars he is to pay as follows: To Ed Wilsey and Eva Wilsey,
children of her brother David Wilsey, now of Scotland county,
Missouri, each one-sixth part; to Mary Louisa Carnell, Abelle
and Stephen Harris Carnell, children of her sister Esther A.
Carnell, now of Saratoga county, New York, each one-sixth
part, and to Annie Laurie Webb and K. S. Webb, children of
her sister Evaline Webb, now of Saratoga county, New York,
each one-sixth part; provided, however, that such payments to
such nieces and nephews of said Lottie R. Wilsey are not to
be due and payable until the expiration of five years after
her death; and provided, further, that the said Lottie R.
Wilsey may at any time charge the beneficiaries of said trust
by indorsement on each copy of this contract; and if so
charged, at any time, the said Simeon K. Wolfe shall make
such payments to such person or persons as she may so direct
and designate in such indorsement at the time above
designated. And it [is] agreed that if said Wolfe shall die
before the death of said Lottie R. Wilsey, that during the
time after such Wolfe's death and the payments of such
money to her, she shall, if she should desire to occupy the
said house and lot herself, have the same free of rent until
such payment be made in full.
"In
witness whereof we hereunto set our hands and seals in
duplicate, this day and year aforesaid.
"[SEAL.]
S. K. WOLFE.
"[SEAL.]
LOTTIE R. WILSEY."
The
affidavit attached to said instrument was as follows:
"STATE
OF INDIANA,
FLOYD
COUNTY.
SCT.
"Lottie
R. Wilsey, being sworn, on oath says that the account and written contract hereto attached, after
deducting all credits, set-offs, and deductions to which the
estate is entitled, is justly due from the estate of Simeon
K. Wolfe, deceased, and is wholly unpaid, and further sayeth
not.
(Signed)
"LOTTIE R. WILSEY.
"Subscribed
and sworn to before me this 23d day of November, 1888. HENRY
R. W. MEYER,
"Clerk
Floyd Circuit Court."
At that
time the terms of the Floyd Circuit Court were held in
February, May, September and November. The claim seems to
have been placed upon the appearance docket at the time of
filing, and allowed to pass over the February term to the May
term, when it was entered upon the issue docket.
At the
May term, 1889, the record shows that the following was
filed, omitting the title:
"The
defendant moves the court to dismiss the claimant's
alleged proceeding herein, for the reason that no statement
whatever has been filed at any time in the office of the
clerk of this court, in which the said estate is pending, as
required by the statute in such case made and provided.
"STOTSENBURG
AND SON,
"Atty's
for said Adm'r."
This
motion was overruled, and an exception taken by the
appellant.
The
record further shows that on the 20th day of June, 1889,
during vacation, the following paper was filed by the
appellee:
"Lottie
R. Wilsey v. Edward W. Wolfe, Adm'r of the
Estate of Simeon K. Wolfe, Deceased.
"In
the Floyd Circuit Court.
"State
of Indiana, County of Floyd, ss.:
"Edward
W. Wolfe, administrator of the estate of Simeon K. Wolfe,
deceased, in account with Lottie R. Wilsey, Dr. To
amount due her upon agreement in writing executed by the said decedent and the said claimant, a copy
of which is herewith filed, marked 'A,' and made part
hereof:
"Interest on $ 5,000 from March 1, 1888, to Nov.
|
19, 1888, being the date of the death of said
|
Wolfe
|
$ 215 00
|
"Amount due November 19, being one year after
|
death of said Wolfe
|
1,000 00
|
"Amount due November 19, 1890, being two years
|
after death of said Wolfe
|
1,000 00
|
"Amount due November 19, '93, being five years
|
after death of said Wolfe
|
3,000 00
|
$ 5,215 00
|
"Cr.--By rent of house referred to in said
agreement
|
from November 4, '88, to November 19, '88,
|
the date of the death of said Wolfe
|
$ 7 50
|
"By rebate of interest on $ 1,000 from date of
allowance
|
to November 19, '89
|
"By rebate of interest on $ 1,000 from date of
allowance
|
to November 19, 1890
|
"By rebate of interest on $ 3,000 from date of
allowance
|
to November 19, 1893
|
"Att'y
for Claimant."
To
which was attached the following affidavit:
"Lottie
R. Wilsey, who is the claimant named in the foregoing
statement, being duly sworn, on her oath says that the above
claim, amounting to $ 5,207.50, less the rebate of interest
required by the statute in such cases provided, after
deducting all credits, set-offs and deductions to which the
said estate is entitled, is justly due and wholly unpaid.
(Signed)
"LOTTIE R. WILSEY.
"Subscribed
and sworn to before me, this 20th day of June, 1889. (Signed)
HENRY R. W. MEYER, Clerk."
"Exhibit
A," referred to in the foregoing statement, is the agreement which forms the foundation of the
claim filed in the first instance.
The
record further shows that at the September term, 1889, of the
court, the following proceedings were had in this cause
(omitting the title): "Come now the parties by their
attorneys, and the plaintiff files an amended claim, which
reads as...
