Elliott; J.
Several objections are urged by the appellant to the proceedings in the circuit court, which will- be considered substantially in the order in which they are presented in the appellant’s brief.
1. It is claimed that the court erred1 in overruling'the demurrer to- the first paragraph of the complaint. The objection urged to- the complaint is, that it alleges- that the contract was made- by the plaintiff and- her- husband with the appellant, whilst by the copy filed, with the complaint it appears to have- been signed only by the plaintiff" and the appellant. There is nothing in the- breach» alleged in the complaint making it essential that the contract should have been, signed by Vachael Ball It was signed, by the- appel[119]*119lant, and contains a recital that Vachael Ball had conveyed' to him the land therein described, and the agreement of the-appellant that, in consideration thereof, he would support both Vachael and his wife, the plaintiff, during their natural lives. The agreement, if signed by the appellant alone,, would have been binding on him. It inured to the benefit of the plaintiff" and after the death of her husband gave her a right of action for its breach in failing to maintain her. The allegations in the complaint would be controlled by the copy furnished, and as a question of pleading, upon demurrer, the contract is presumed to have been signed by Sarah Ball and the appellant, and the complaint was, therefore, sufficient. But it may be remarked in this connection, that, as the body of the contract purports to be an agreement between Vachael Ball, and the appellant, there was probably an error in copying the signatures, by which “ Sarah” was substituted for “Vachael.”
2. On the trial of the cause, the plaintiff" below was permitted to prove, over the appellant’s objection, in support of the third paragraph of the complaint, that soon after the death of Vachael Ball the appellant took and converted to his own use certain articles of personal property owned by said Vachael at the time of his death and referred to in the agreement with the appellant. It is insisted, that the court erred in admitting the evidence. Its admission is objected to, first, on the claim that, by the written agreement, the property referred to, on the death of Vachael Ball, became the absolute propei’ty of the appellant, and, therefore, the conversion of it by him did not breate a cause of action in favor of the appellee; and second, that if the appellant was not entitled to the property, under the agreement, at Vachael’s death, it remained the property of his estate, and could only be recovered by his personal representative.
The claim that the property vested in the appellant, under the agreement, upon the death of Vachael Ball, his wife [120]*120still surviving, is not supported by the language of that instrument. The provision contained in the agreement in relation to the personal property is this: “And after the death of both Vachael and wife, what may remain of personal property shall be Blossom’s.”
Nor do we think that .such personal property became the .subject of administration on the death of Yachael. It seems .evident that it was the intention of the parties that the personal property referred to in the agreement should be appropriated to the use of Ball and his wife-, in such manner as they might deem proper, to aid in their comfort and .-support, during their respective lives, and if at the death <of the survivor any portion of it might remain, it should vest in the appellant. After the death of Yachael, the appellant was still bound for the support of the wife, and was entitled under the agreement to have the property so used as to aid him in her support; and hence it would not go to the administrator of Yachael.
8. The court permitted the plaintiff to read in evidence, on the trial, over the appellant’s objection, a copy of the contract referred to in the first paragraph of the complaint, the original being lost. This ruling is. also claimed to be erroneous. The admission of the copy was objected to on the ground that there was not sufficient evidence of the loss •of the original. Ye have examined the evidence as to its loss, and think it is clearly sufficient to justify the admission of the copy. It was also objected to on the ground of a variance between the copy offered in evidence and the one filed with the complaint. The variance consisted in the fact that the copy offered in evidence purports that the original was signed by Yachael Ball and the appellant, whilst the copy filed with the complaint contains the name of Sarah, instead of Yachael, Ball at the place of signature. It was not controverted that the one offered in evidence was a true copy of the original. The error was evidently in the copy filed with the complaint. The complaint and the copy of the agreement might have been amended on the [121]*121trial (2 G-. & H. 114, secs. 94, '95), so as to correspond with the copy given in evidence. The variance was not of such a character as to mislead the appellant in his defense on the merits, and the amendment will be deemed by this court as having been made.
■ 4. It appears by a bill of exceptions that during the trial the appellant offered to prove that the appellee, soon after the death of her husband, and about the time she went to live with Justin Mann, commenced a suit in the Adams Circuit Court against the appellant, to rescind the contract, and for the recovery of the land, which she continued to prosecute for several years. But the court rejected the evidence, to which the appellant excepted.
It is claimed that the evidence offered was legitimate (in connection with other evidence adduced, that the appellee refused to live with the appellant and resided with Mann, another son-in-law), as tending to show- that the appellee, and not the appellant, violated 'the contract. The fact that such a suit was instituted would not, of itself, necessarily tend to prove a violation or abandonment of the contract by the appellee. It does not appear that the appellant offered in evidence the record of the suit referred to, which would be the best evidence of its nature and object; and • for aught that appears from the facts offered to be proved, the suit may have been founded on an alleged violation and abandonment of the contract on the part of the appellant, and if so, it would not, in any way, tend to support the issues in this case, or be of any benefit to the appellant. "We think that the evidence was properly excluded.
5. The next question presented is, that the finding of the court is not sustained by the evidence. A careful .examination of the evidence has been made, and from it we find that it appeai’3, conclusively, that the appellee, after the death of her husband, in August, 1862, by reason of her age and feeble condition, could not longer keep house. She was often sick and confined to her bed, and needed the almost constant care and personal attention of some one. [122]*122and hence it was highly proper, if not essentially necessary, that she should become the inmate of a family, where she would be properly cared for, at all times, and nursed when sick.
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Elliott; J.
Several objections are urged by the appellant to the proceedings in the circuit court, which will- be considered substantially in the order in which they are presented in the appellant’s brief.
1. It is claimed that the court erred1 in overruling'the demurrer to- the first paragraph of the complaint. The objection urged to- the complaint is, that it alleges- that the contract was made- by the plaintiff and- her- husband with the appellant, whilst by the copy filed, with the complaint it appears to have- been signed only by the plaintiff" and the appellant. There is nothing in the- breach» alleged in the complaint making it essential that the contract should have been, signed by Vachael Ball It was signed, by the- appel[119]*119lant, and contains a recital that Vachael Ball had conveyed' to him the land therein described, and the agreement of the-appellant that, in consideration thereof, he would support both Vachael and his wife, the plaintiff, during their natural lives. The agreement, if signed by the appellant alone,, would have been binding on him. It inured to the benefit of the plaintiff" and after the death of her husband gave her a right of action for its breach in failing to maintain her. The allegations in the complaint would be controlled by the copy furnished, and as a question of pleading, upon demurrer, the contract is presumed to have been signed by Sarah Ball and the appellant, and the complaint was, therefore, sufficient. But it may be remarked in this connection, that, as the body of the contract purports to be an agreement between Vachael Ball, and the appellant, there was probably an error in copying the signatures, by which “ Sarah” was substituted for “Vachael.”
2. On the trial of the cause, the plaintiff" below was permitted to prove, over the appellant’s objection, in support of the third paragraph of the complaint, that soon after the death of Vachael Ball the appellant took and converted to his own use certain articles of personal property owned by said Vachael at the time of his death and referred to in the agreement with the appellant. It is insisted, that the court erred in admitting the evidence. Its admission is objected to, first, on the claim that, by the written agreement, the property referred to, on the death of Vachael Ball, became the absolute propei’ty of the appellant, and, therefore, the conversion of it by him did not breate a cause of action in favor of the appellee; and second, that if the appellant was not entitled to the property, under the agreement, at Vachael’s death, it remained the property of his estate, and could only be recovered by his personal representative.
The claim that the property vested in the appellant, under the agreement, upon the death of Vachael Ball, his wife [120]*120still surviving, is not supported by the language of that instrument. The provision contained in the agreement in relation to the personal property is this: “And after the death of both Vachael and wife, what may remain of personal property shall be Blossom’s.”
Nor do we think that .such personal property became the .subject of administration on the death of Yachael. It seems .evident that it was the intention of the parties that the personal property referred to in the agreement should be appropriated to the use of Ball and his wife-, in such manner as they might deem proper, to aid in their comfort and .-support, during their respective lives, and if at the death <of the survivor any portion of it might remain, it should vest in the appellant. After the death of Yachael, the appellant was still bound for the support of the wife, and was entitled under the agreement to have the property so used as to aid him in her support; and hence it would not go to the administrator of Yachael.
8. The court permitted the plaintiff to read in evidence, on the trial, over the appellant’s objection, a copy of the contract referred to in the first paragraph of the complaint, the original being lost. This ruling is. also claimed to be erroneous. The admission of the copy was objected to on the ground that there was not sufficient evidence of the loss •of the original. Ye have examined the evidence as to its loss, and think it is clearly sufficient to justify the admission of the copy. It was also objected to on the ground of a variance between the copy offered in evidence and the one filed with the complaint. The variance consisted in the fact that the copy offered in evidence purports that the original was signed by Yachael Ball and the appellant, whilst the copy filed with the complaint contains the name of Sarah, instead of Yachael, Ball at the place of signature. It was not controverted that the one offered in evidence was a true copy of the original. The error was evidently in the copy filed with the complaint. The complaint and the copy of the agreement might have been amended on the [121]*121trial (2 G-. & H. 114, secs. 94, '95), so as to correspond with the copy given in evidence. The variance was not of such a character as to mislead the appellant in his defense on the merits, and the amendment will be deemed by this court as having been made.
■ 4. It appears by a bill of exceptions that during the trial the appellant offered to prove that the appellee, soon after the death of her husband, and about the time she went to live with Justin Mann, commenced a suit in the Adams Circuit Court against the appellant, to rescind the contract, and for the recovery of the land, which she continued to prosecute for several years. But the court rejected the evidence, to which the appellant excepted.
It is claimed that the evidence offered was legitimate (in connection with other evidence adduced, that the appellee refused to live with the appellant and resided with Mann, another son-in-law), as tending to show- that the appellee, and not the appellant, violated 'the contract. The fact that such a suit was instituted would not, of itself, necessarily tend to prove a violation or abandonment of the contract by the appellee. It does not appear that the appellant offered in evidence the record of the suit referred to, which would be the best evidence of its nature and object; and • for aught that appears from the facts offered to be proved, the suit may have been founded on an alleged violation and abandonment of the contract on the part of the appellant, and if so, it would not, in any way, tend to support the issues in this case, or be of any benefit to the appellant. "We think that the evidence was properly excluded.
5. The next question presented is, that the finding of the court is not sustained by the evidence. A careful .examination of the evidence has been made, and from it we find that it appeai’3, conclusively, that the appellee, after the death of her husband, in August, 1862, by reason of her age and feeble condition, could not longer keep house. She was often sick and confined to her bed, and needed the almost constant care and personal attention of some one. [122]*122and hence it was highly proper, if not essentially necessary, that she should become the inmate of a family, where she would be properly cared for, at all times, and nursed when sick.
It also appears that the appellant was at all times willing to take her to his own house and there provide for and support her, where she would be cared for and nursed by her daughter, the appellant being her son-in-law, and often requested her to go there and reside, but she refused to do so, preferring to make her home with her son-in-law Mann, between whom and the appellant there was no very kind feeling.
The agreement bound the appellant to “ provide for and maintain” Ball and his wife, “in a suitable and becoming manner, during their natural lives.” The obligation for such maintenance commenced at the date of the agreement, and yet it contemplated that they would continue, for some time, to keep house; and the evidence shows that they continued to live in the house, on the farm conveyed to the appellant, until the death of the husband. But the agreement is silent as to where they should reside and receive the support provided for, after they ceased to keep house. It binds the appellant to maintain and provide for the appellee in a suitable manner, but it does not require that he should take her to his own house to reside, or that she- should necessarily go there to receive her support or be deprived of it. A provision for her support in a suitable family, where she would be properly nursed and cared for by those not obnoxious to her, would comply with the agreement. And so, if the appellant made such provision at his own house, and if it was a suitable and proper place for her to reside, and she could have lived there in harmony, and would there have received the proper care and' attention and had all her reasonable wants supplied, it was her duty to make that her home; and if she refused to do so, without cause, and voluntarily went elsewhere to live, the appellant would not be liable for her board and personal care during such absence. [123]*123It would be otherwise, however, as to her clothing and necessary expenses for medical services when sick.
D. Studabaker, for appellant.
J. JR. Bobo, J. B. McDonald, A. L. Boache, and B. M, McDonald, for appellee.
The suit covers a period of five years, during which the appellee lived at Mann’s. The appellant, during that time, gave her ten dollars in money and furnished her a few small , articles, not amounting in value to ten dollars. It is insisted, on the part of the appellee, that the appellant’s house was not a proper place for her to reside, and that owing to his ill temper and harsh language to her personally, and to frequent quarrels and disagreements among the members of his family, she could not live there in peace, or with any reasonable degree of comfort. The evidence on this subject is very conflicting, and would, without violence to it, justify a finding either way.
The finding was for the appellee, and we would not be justified in disturbing it.
6. The only remaining objection to the finding is, that the damages are excessive. We do not think so. The amount is less than one thousand dollars for the appellee’s support and maintenance for five years, allowing nothing for the use of the personal property covered by the third paragraph of the complaint. This is less than two hundred dollars a year for the appellee’s support, including board, clothing, and personal care and attention; which, in view of her feeble condition, we think, is quite moderate, and is fully justified by the evidence.
The judgment is affirmed, with costs.