Volume 79 — Indiana Appellate Court Reports

<p>1. Wills. — Testator Bequeathing Property of Beneficiary. — Acceptance of Bequest by Beneficiary. — Estoppel.—Where a testator by his will assumes to dispose of the property of another person who is made a beneficiary under the will, and such person voluntarily accepts a bequest or devise under the will, the acceptance is a confirmation of the terms of the will and operates to estop such person to-object to the disposition of his own property, p. 3.</p> <p>2. Wills. — Testator Assuming to Dispose of Widow’s Property. —Election by Widow to Take Under Will. — Estoppel.—Before a widow by her election to take under the will of her husband can be held to have bound herself to permit her own property to pass under the operation of her husband’s will, it must be made clear by the will beyond a reasonable doubt that the husband intentionally assumed to dispose of her property, p. 4.</p> <p>3. Wills. — Construction.—Intent of Husband to Devise Wife’s Land. — A will which, after disposing of testator’s personal property, devises to testator’s wife for life, with remainder to his children, “all of my real estate that I may have at my death,” held not to make it clear beyond a reasonable doubt that testator by his will intended to dispose of real estate the title to which at his death was in himself and wife as tenants by entireties, by reason of deeds of his land executed subsequent to the making of the will, by him and his wife to a third person, and a deed thereof immediately thereafter from such grantee to him and his wife, so that by electing to take under the will she is not estopped to assert that the real estate did not pass thereunder, so as to give the children a life estate therein, p. 4.</p>

<p>From Switzerland Circuit Court; Edward S. Roberts, Judge.</p> <p>Action by Cleveland T. Colbert against William E. Ogle. From a judgment for plaintiff, the defendant appeals.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Plousia Spirakis and others against the Universal Portland Cement Company. From an award for applicants, the defendant appeals.

<p>1. Husband and Wipe. — Contract of Wife to Pay for Services Rendered Her and Her Husband. — Validity. — A married woman can make a valid contract binding her to pay for personal services rendered to herself and husband, notwithstanding the husband’s duty to support his wife, so that one rendering such services under a joint contract with the husband and wife can recover from the administrator of the wife’s estate for services rendered prior to the death of the husband; such contract being neither a contract of suretyship nor one rendering the lands of the wife liable for the debts of her husband. . p. 47.</p> <p>2. Husband and Wife. — Married Women. — Right to. Contract. — ■ Ability of married women to enter into contracts is the rule, and disability the exception, p. 47.</p> <p>8. Witnesses.— Competency.— Physicians. — Communications as to Business Matters.— Statutes.— Where a family physician was a personal friend and business adviser of his patient, he was competent to testify as to statements made by his patient . to him. concerning her business affairs, such communications not being privileged under §520 Burns 1914, §497 R. S. 1881. p. 49.</p>

<p>From Marion Superior Court (A-4,134); W. W. Thornton, Judge.</p> <p>Action by Anna H. Wright against Joseph G. Schaub. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Frauds, Statute op. — Contracts for Sale of Land. — Description. — Sufficiency.—In a contract for the sale of land, a description of the land as '“part of the west half of the northeast quarter of Section 26, 12, 3 containing 43.62 acres, more or less,” is too indefinite and uncertain to make the contract a sufficient memorandum under the statute, especially in the absence of any allegation in the complaint for breach of the contract that the vendor owned only the stated' quantity of land in the subdivision specified; the description being of such a character as to require the introduction of parol evidence to describe the land, and then to apply the description, p. 65.</p> <p>2. Frauds, Statute op. — Contracts for Sale of Land. — Insufficient Description.— Aiding by Abstract.— An insufficient description of land in a contract for the sale thereof cannot be aided by reference to the abstract of title thereafter furnished pursuant to the terms of the contract, since the contract must have been valid at the time of its execution, p. 65.</p>

<p>Taxation.— Recovery of Taxes Paid.— Findings. — Evidence.— Sufficiency. — In an action against a county board of commissioners to recover taxes paid, a finding that the assessor in assessing plaintiff’s land for taxation assessed the coal and minerals lying thereunder, which belonged to another, held sustained by the evidence.</p>

From Marion Probate Court; Mahlon E. Bash, Judge. Petition by Joseph K. Brown, executor of the will of Charles S. Nunn, deceased, against Mary C. Nunn, for the sale of decedent’s real estate, in which defendant filed a petition asking that certain payments be made to her, and from an order in her favor, plaintiff appeals.

From Marion Superior Court (A-982) ; V. G. Clifford, Judge. Application by the Globe Mining Company to have set aside a judgment rendered against it in favor of the Oak Ridge Coal Company. From a judgment sustaining a motion to strike out the application, the applicant appeals.

<p>1. Appeal.— Review.— Judisdictional Questions.— The question of jurisdiction of the Appellate Court to consider the matters presented on appeal will be considered, although not raised by appellees, p. 83.</p> <p>2. Appeal. — Decisions Reviewable. — “Final Judgment.” — Statutes. — Where, in an action against two defendants, judgment was rendered in favor of both, but was subsequently set aside, and judgment rendered against one defendant, but in favor of the other, and a motion for new trial was overruled as to the issues joined by the defendant in whose favor judgment was rendered and sustained as to the issues joined by the other defendant, and the cause was set for trial as to the undetermined issues, but the record fails to show that any trial thereof was had, the Appellate Court is without jurisdiction to determine the questions presented, and the appeal must be dismissed, since the record fails to show the rendition of a final judgment within §671 Burns 1914, §632 R. S. 1881, providing that appeals may be taken from final judgments; a final appealable judgment within the statute being one that disposes of all the issues, as to all the parties, to the full extent of the power of the court to dispose of the same. p. 83.</p>

<p>From Jasper Circuit Court; George A. Williams, Judge.</p> <p>Action by Claude E. Lambert against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Hamilton Circuit Court; Ernest E. Cloe, Judge.</p> <p>Action by Elizabeth Rogers against the Indianapolis and Cincinnati Traction Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Evidence.- — Telephone Conversation. — Admissibility.—Identification of Party to Conversation.- — Where a witness testified that she heard plaintiff call defendant by name over the telephone and listened to part of the conversation between them, and plaintiff testified that she called defendant and talked with her and that during the conversation the witness listened part of the time, the identification of defendant as the other party to the conversation held sufficient to render the conversation admissible in evidence, p. 219.</p> <p>2. Evidence. — Statements over Telephone. — Competency.—The rule permitting a witness to testify to statements of others made over the telephone applies to statements made by the party outside of the presence of the witness, but heard over the telephone by him, where such party is sufficiently identified, p. 219.</p>

<p>Divorce. — Grounds.—Cruel and Inhuman Treatment. — Evidence. —Sufficiency.—A decree of divorce will not be awarded to a husband on the ground of cruel and inhuman treatment based on the refusal of the wife to have sexual relations with him and to have children by him, causing great distress of mind, where there is no evidence of such distress, or as to the physical condition of the parties, or that the husband in any way objected to or remonstrated with his wife in regard to such conduct.</p>

From Marion Superior Court (A10,936); Solon J. Carter, Judge. Action by Mary D. Kline against the Indiana Trust Company, trustee, etc., and others. From a judgment for defendants, the plaintiff appeals.

<p>From Marion Superior Court (A10,536) ; Solon J. Carter, Judge.</p> <p>Action by John R. Gray and another against James G. Royse. From a judgment for plaintiffs, the defendant appeals.</p>

<p>From Tipton Circuit Court; James M. Purvis, Judge.</p> <p>Action by the Citizens Loan and Trust Company of Lebanon, administrator of the estate of Charles W. Miller, deceased, against the Terre Haute, Indianapolis and Eastern Traction Company. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Landlord and Tenant. — Expiration of Lease. — Lessee Holding Over. — Bights of Landlord. — By remaining in possession of leased premises after the expiration of his lease, the tenant, being the wrong-doer, gives to his landlord the option of treat-, ing him as a trespasser, or as a tenant for another year upon the terms of the original lease, so far as applicable to the new relation, p. CC9.</p> <p>2. Landlord and Tenant. — Tenancy for Year. — Termination.— Lessee Holding Over.— Liability for New Term.— A tenant holding a lease for a term of one year may hold over without obligating himself for another term as fixed by the original lease, if he has an agreement to that effect with his landlord, p. 510.</p> <p>8. Landlord and Tenant. — Expiration of Lease. — Lessee Holding Over. — Questions of Fact. — Where a tenant holds over after the expiration of his original lease, whether there has been an agreement that the tenant may hold over upon terms different from those contained in the original lease is a question of fact. p. 510.</p> <p>4. Landlord and Tenant. — Expiration of Lease. — Lessee Holding Over. — Liability for Rent. — Where tenant corporation occupying a building under a lease for the term of one year continued in possession for several months after the expiration of the original term, a finding that it became obligated to pay rent for the entire year was not error in the absence of an agreement with lessor that the tenant might hold over without incurring such liability, notwithstanding that lessor was a director of tenant company and was present at a meeting of the board of directors when there was a discussion as to the vacation of the premises upon the completion of a new building being erected by the corporation, but no time was fixed for removal, p. 510.</p> <p>5. Landlord and Tenant. — Lease.—Construction.—Intention of Parties. — A written lease must be so construed as to give effect to the intention of the parties, and, in arriving at the intention, the subject matter, the situation of the parties, and the object to be accomplished are to be considered, p. 510.</p> <p>6. Landlord and Tenant. — Lease.—Construction.—Covenant as to Condition of Premises upon Surrender. — A covenant to surrender a building in the same condition as it was at the time of the execution of the lease, natural wear and tear excepted, is not equivalent to a covenant to restore, p. 510.</p> <p>7. Landlord and Tenant. — Expiration of Lease. — Installation and Removal of Healing Plant and Machinery. — Liability of Tenant for Damages. — Whore a building was leased for one year for use as an automobile tire factory upon condition that lessee at its own expense furnish a heating plant and make other improvements, but not to the weakening of, or injury to, the walls, and that at the expiration of the lease it would surrender the premises in as good condition as when the lease was executed, natural wear and tear excepted, held that on surrender the lessor was not entitled to damages caused by the installation and removal of the heating plant, nor to damages necessarily caused by fitting the building for the use contemplated. p. 512.</p> <p>8. Landlord and Tenant. — Lease.—Construction.—Covenant as to Condition of Premises upon Surrender. — Liability for Damages. — A provision' in a lease that the tenant will surrender the leased premises at the expiration of the term in as good condition as when leased does nbt require the tenant to make good the depreciation due to such wear and tear as is incident to the use for which the premises were leased, p. 512.</p>

<p>Judgment. — Judgment of Court Lacking Jurisdiction. — Matters Concluded. — Bight to Belief in Proper Court. — Where, after judgment was rendered by a superior court awarding lessors possession of leased premises, lessees, in an action in a circuit court, were denied an injunction restraining lessors from enforcing a writ of possession, an answer, in an action by lessees in such superior court to have the judgment of possession set aside under §405 Burns 1914, §396 R. S. 1881, on the ground of excusable neglect, setting up the judgment and decree of the circuit court as a former adjudication, was insufficient, since the circuit court had no jurisdiction over the records and judgments of the superior court, and was without power to restrain the enforcement of its judgments, so that the matter in issue in the action to set aside the judgment could not have been determined in the injunction proceeding.</p>

<p>1. Contracts. — Railroads.—Exemption from Liability by Special Contracts. — Validity.—While railroads may not, as common carriers, enter into contracts which contravene the rights of the general public, they may, as private carriers or bailees for hire, enter into special engagements as matters of accommodation concerning matters in which the public has no interest, but which concern only the contracting parties, p. 554.</p> <p>2. Contracts.— Railroads.— Negligence.— Limitation of Liability. — A railroad company contracting to do something which it cannot be compelled to do in its capacity as a common carrier may, as a consideration, impose conditions in such contract releasing it in advance from liability for damages resulting from negligence, p. 555.</p> <p>3. Railroads. — Lease of Right of Way. — Stipulation Exempting Lessor from Liability for Fire. — Validity.—Statutes.—A stipulation in a lease by a railroad company of a portion of its right of way to a private individual exempting the company from liability for damages to lessee’s property by fire, is not void as being against public policy, and not in contravention of §5525a Burns 1914, Acts 1911 p. 186, making railroad companies liable for damages resulting from fire. p. 555.</p>

From Floyd Circuit Court; John M. Paris, Judge. Action by the Jefferson County Construction Company against Minnie Sapinsky and another, in which Thomas M. McCulloch and James W. Dunbar filed cross-complaints. From a judgment for plaintiff and cross-complainants, the defendants appeal.

From Howard Circuit Court; William C. Purdum, Judge. Action by the State of Indiana, on the relation of A. Clinton Davisson, against Robert C. Hillis and others. From a judgment for defendants, the relator appeals.

<p>1. Pleading.— Complaint.— Averment of Interest.— Sufficiency. —In an action to invoke the equity powers of the court for the purpose of conserving a fund in which plaintiffs claim an interest, it is not necessary to show their interest by alleging its existence in other than general terms, but, having elected to allege its' source, it is necessary that the specific facts stated in that regard should disclose such interest, in order to make the complaint sufficient as against demurrer, p. 638.</p> <p>2. Pleading.— Action to Conserve Testator’s Estate.— Complaint. — Sufficiency.—Averment of Interest. — Setting out Entire Will. — In an action by remaindermen to conserve a fund derived from the sale of testator’s property, plaintiffs wei’e not required to set out in the complaint the entire will under which they claimed an interest, where they alleged that testator disposed of his estate by certain language, thereby compelling the inference that the will contained no other provisions affecting the disposition of the estate, p. 638.</p> <p>3. Wills. — Construction.—Vesting of Remainders. — The law not . only favors the vesting of remainders, but it also presumes that words postponing an estate relate to the beginning of the enjoyment of the remainder, and not to the vesting of that estate; and, where an estate is created by will, it will be held to vest at the earliest possible time, in the absence of a clear manifestation of the intention of the testator to the contrary, p. 639.</p> <p>4. Wills. — Remainders.—Uncertainty as to Amount of Estate. —Vested Remainders. — A remainder is not contingent because there is an uncertainty as to the amount of the estate, or as to when the right of enjoyment will accrue, but is vested where there is a present fixed right of future enjoyment, p. 639.</p> <p>5. Wills. — Determination of whether Estáte is Vested or Contingent Remainder. — Certainty as to Enjoyment in Lifetime of Remainderman. — The right and capacity of a remainderman to take possession of the estáte, if the possession were to become vacant, and the certainty that the event upon which the vacancy depends must happen sometime, and not the certainty that it will happen in the lifetime of the remainderman, determine whether an estate is a vested or contingent remainder, p. 639.</p> <p>6. Wills.— Construction.— Determination whether Remainders a/r& Vested or Contingent. — Power of Sale Conferred on Life Tenant. — Whether a remainder is vested or contingent is not affected by a power of sale conferred on the life tenant by the will creating it. p. 639.</p> <p>7. Wills. — Construction.—Life Estate. — Vesting of Remainders. —Under a will devising to testators wife all of testator’s real and personal estate “to have and to hold the sole and exclusive use and control thereof during her natural life, with full power to sell, convey, lease or mortgage the whole or any part thereof, but not to testate or will over the same, and at her decease the remaining estate, real and personal, shall be divided equally between my children share and share alike,” the interest of the remaindermen were vested and not contingent, p^ 639.</p> <p>8. Life Estates. — Preservation of Estate — Duty of Tenant.— While a life tenant is entitled to the possession of the estate, and may use it for his own benefit, and appropriate to himself the proceeds arising from such use, still he holds the corpus of the estate in trust in the sense that he must exercise reasonable precautions to preserve the property intact for transmission to the remainderman at the termination of the life estate, and may not injure or dispose of it to his detriment, p. 640.</p> <p>9. Trusts. — Preservation of Estate in Posession of Life Tenant. —Appointment of Trustee. — Remaindermen, with a vested interest in the funds in the hands of a life tenant, may have a trustee appointed to take possession thereof, and manage the same under the court’s supervision, where there is actual or threatened waste, or the life tenant is physically or mentally incapable of preserving the' fund or managing it prudently; and such rule is applicable to a fund derived from a sale of land made by the life tenant in pursuance of a power conferred by the will creating the estate, although the will expressly provides that the life tenant is “to have and to hold the sole and exclusive use and control thereof during her natural life,” such use and control being exclusive only when exercised in carrying out the intention of the testator, p. 640.</p> <p>10. Trusts. — Removal of Trustee. — Grounds.—Statutes.—When a trustee avowedly, or by a course of conduct impliedly, repudiates his trust respecting a fund, and "threatens to waste it or divert it from the purpose intended, a remainderman with a vested interest therein may invoke the aid of a court of equity in the protection 'of his rights and ask to have the . trustee remoyed and another- appointed in his stead, under §4023 Burns 1914, §2980 R. S. 1881. p. 640.</p> <p>11. Life Estates. — Wrongful Disposition of Property by Life Tenant. — Right of Remainderman to Injunctive Relief. — Where a life tenant and others are about to -wrongfully dispose of the property, and the life tenant is mentally incapable of caring for it, the remainderman may be granted an injunction restraining the doing of any' act that would render any decree that might be rendered unavailing, p. 643.</p>

From LaPorte Circuit Court; James F. Gallaher, Judge. Action by John Laws, by his next friend, Francis Laws, against the Hammond, Whiting and East Chicago Railway Company. From a judgment for defendant, the plaintiff appeals.

<p>1. Insurance. — Liability.—Action on Policy. — Complaint.—Sufficiency. — Averment of Notice of Claim to Insurer. — In a telephone company’s action on a public liability policy, complaint held sufficient as against demurrer presenting the question of notice of the accident required by the policy, p. 665.</p> <p>2. Appeal. — Pleading.—Granting Leave to Amend after Close of Issues. — Discretion of Court. — Presumptions.—The granting of leave to amend pleadings or to file additional pleadings after the issues are closed and on trial is within the discretion of the court, and, in the absence of a showing that there has been an abuse of discretion to the prejudice of the party objecting, it will be presumed that the court did not err. p. 666.</p> <p>3. Insurance. — Liability.—Action on Policy. — Answers to Special Interrogatories.— Evidence.— Sufficiency.— In a telephone company’s action on a public liability policy evidence held sufficient to sustain the answer of the jury to an interrogatory that the manager of plaintiif company, within less than six months after the accident involved, did not have notice thereof, p. 667.</p> <p>4. Insurance. — Liability.—Failure of Insurer to Defend Suit.— Liability to Insured for Expense of Appeal. — Where a liability insurer had full opportunity to defend an action against insured for personal injuries, but refused to do so, in breach of its contract, it cannot question insured’s conduct of the defense, in the absence of fraud, to prevent insured from recovering expenses in defending, including costs and expenses of appeal. p. 668.</p> <p>5. Appeal. — Suspension of Judgment. — A judgment is suspended during the pendency of an appeal, p. 668.</p>