Miller v. Adkinson

Indiana Supreme Court

Miller v. Adkinson

32 Ind. 433

DecidedNovember 15, 1869

StatusPublished

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Bluebook

Miller v. Adkinson, 32 Ind. 433 (Ind. 1869).

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Opinion

Frazer, C. J.

The plan or scheme of the will, judged by all its parts, seems to have been to state the indebtedness of each of the testator’s children to him at the date of the will, and to make a specific disposition thereof. We are, therefore,-led to the conclusion that the testator then estimated' the whole indebtedness of Sarah Hayes to him at the sum mentioned in his will, to wit, six hundred dollars, and that he intended to give the whole of it, whether more-or-less, to her. There might have been extraneous circumstances existing, in the light of which the instrument would possibly admit of, and should, perhaps, receive, a different construction. But the reply does not, in our opinion, allege such circumstances. The fact that there was found amongst the papers of the testator a statement of an account against Sarah Hayes, as guardian, &c., embracing items of date as well before as after he and she had settled iheir personal accounts and found a balance in her favor, is very inconclusive and unsatisfactory, and is, of itself, wholly insufficient to change the conclusion which we have reached ás to the testator’s intention, upon an examination of the will itself! We are of opinion, therefore, that the second paragraph of the reply was bad, if made to a good defense. The first paragraph was certainly bad, as it neither asserted nor denied any fact.

But we think that both the fifth and sixth paragraphs of the answer (which only are questioned here) were insufficient, and that the court below erred in overruling- demurrers to them. They plead the will' as a discharge of the claim sued for. But they do not allege that all or any part of it had accrued before the will was made. And, as has been already intimated, that instrument cannot, we think, [437]*437be interpreted to dispose of or discharge any indebtedness which accrued after it was made. By its terms, it applies only to existing facts.

W. /S'. Holman and J. Schwartz, for appellant.

Judgment reversed. Cause remanded, with 'directions to sustain the demurrers to the fifth and sixth paragraphs of the answer.

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Frazer, C. J.

The plan or scheme of the will, judged by all its parts, seems to have been to state the indebtedness of each of the testator’s children to him at the date of the will, and to make a specific disposition thereof. We are, therefore,-led to the conclusion that the testator then estimated' the whole indebtedness of Sarah Hayes to him at the sum mentioned in his will, to wit, six hundred dollars, and that he intended to give the whole of it, whether more-or-less, to her. There might have been extraneous circumstances existing, in the light of which the instrument would possibly admit of, and should, perhaps, receive, a different construction. But the reply does not, in our opinion, allege such circumstances. The fact that there was found amongst the papers of the testator a statement of an account against Sarah Hayes, as guardian, &c., embracing items of date as well before as after he and she had settled iheir personal accounts and found a balance in her favor, is very inconclusive and unsatisfactory, and is, of itself, wholly insufficient to change the conclusion which we have reached ás to the testator’s intention, upon an examination of the will itself! We are of opinion, therefore, that the second paragraph of the reply was bad, if made to a good defense. The first paragraph was certainly bad, as it neither asserted nor denied any fact.

But we think that both the fifth and sixth paragraphs of the answer (which only are questioned here) were insufficient, and that the court below erred in overruling- demurrers to them. They plead the will' as a discharge of the claim sued for. But they do not allege that all or any part of it had accrued before the will was made. And, as has been already intimated, that instrument cannot, we think, [437]*437be interpreted to dispose of or discharge any indebtedness which accrued after it was made. By its terms, it applies only to existing facts.

W. /S'. Holman and J. Schwartz, for appellant.

Judgment reversed. Cause remanded, with 'directions to sustain the demurrers to the fifth and sixth paragraphs of the answer.

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Bluebook (online)

32 Ind. 433, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-adkinson-ind-1869.