Decker v. Barnes ( 1897 )

Opinion by

Willard, J.,

Maggie A. Decker, executrix of the estate of Nathaniel Burt, deceased, brought an action in the court below against John W. Barnes to recover the sum of $200, alleged to be due decedent’s estate.

Charity Burt, the wife of Nathaniel Burt, died before her husband, and by the terms of her last will she devised a certain house and lot of land to her husband for and during his natural life, and immediately after his death to their daughter, Cynthia R. Sibert. The daughter died before her father. Nathaniel Burt and John Birch were designated and appointed executors of the will of Charity Burt. By one of the provisions of the will the executors, with the assent of Nathaniel Burt and Cynthia R. Sibert, were authorized to sell and convey the property, purchase other property with the proceeds or invest the same for the benefit of Nathaniel Burt during his life; in short, provision was made that Nathaniel Burt should have the use of the property or its proceeds during his life and no longer. Barnes desired to purchase the property and Burt assented to the sale and joined his co-executor in a deed of conveyance therefor. An article of agreement in writing was entered into between Burt and Birch, as executors, and Barnes, by the terms of which the executors agreed to sell the property to Barnes for the consideration of $3,000. The agreement was dated January 24, 1891, and signed and sealed by the parties individually. One of the clauses of the agreement was, viz: “ This agreement to be subject to the provisions of the will of Charity Burt, deceased, above mentioned, and the purchase money to be invested and the interest thereof to be applied in accordance therewith.” Attached to the agreement was also the following: “I, John W. Barnes, agree to pay the first and every years’ interest on' the above purchase money to Nathaniel Burt in advance until his death, also a bonus of $20.00 per annum to Nathaniel Burt only during his life.” This was signed by John W. Barnes. Two days after the execution of the agreement the executors made and delivered a deed for the premises to Barnes. The deed recites the essential part of the will of Charity Burt. On the delivery of the deed to Barnes he executed and delivered his bond and mortgage to the executors in the penal sum of $6,000 to secure payment of the $3,000 purchase money and interest thereon. The bond was payable in five years, with a proviso giving Barnes the right to pay the principal and interest at any time on thirty days’ notice. The first three instalmentsof interest and bonus were paid in advance; the payment falling due January 24, 1894, was not paid in advance. Nathaniel Burt died on April 7, 1894. On June 1,1894, Barnes, under the terms of the bond and mortgage, paid the principal and interest to that date to John Birch, the co-executor, and the mortgage was duly satisfied of record.

The executrix of Burt sued Barnes for the interest due from January 24, 1894 to January 24,1895 and the bonus of $20.00. The learned trial judge in a careful charge disposed of the case correctly and nothing can be profitably added to the principles of law so clearly defined by him for the guidance of the jury in arriving at a correct verdict. He held that the will of Charity Burt, the agreement and the bond and mortgage must be considered together, and when so considered and the agreement construed in connection with the other papers it was manifestly the intent of the parties that Nathaniel Burt should receive his bonus and the interest on the purchase money during his natural life. It is true that had the interest for 1894 been paid in advance it would have been a good payment of one year’s interest on the mortgage. It is also true that Nathaniel Burt, after the execution of the agreement, empowered the appellee at any time, on notice, to pay the entire principal and interest, and the payment to his co-executor, according to the proviso in the bond and mortgage, on the first day of June, 1894, was a good payment of the principal and all interest recoverable under a fair construction of all the papers. Upon the death of Nathaniel Burt the principal and interest from that date belonged to the son and heir of Cynthia R. Sibert, and by no reasonable construction of the agreement, in connection with the will of Charity Burt to which the agreement is subject by its terms, could the executrix of the life tenant be allowed one cent of the interest which belongs to the son and heir of Cynthia R. Sibert. The principal and interest were paid by Barnes to the coexecutor who had the right to receive it. The interest due the executrix of Burt’s estate, from January 24, 1894 to the date of his death, his co-executor, Birch, now holds in trust for the estate and is willing to pay it over whenever requested. Judgment Avas properly entered for the just pro rata amount of the bonus. The seventh, eighth, ninth, tenth and eleventh assignments of error are overruled. There is no merit in the first, second, third and fourth assignments of error. The testimony offered and rejected not only anticipated the defense as ruled by the trial judge, but in the absence of allegations of fraud or mistake it was incompetent to vary or change the terms of the agreement declared upon and put in evidence by the plaintiff.

The Avill of Nathaniel Burt, the deed of Nathaniel Burt and John Birch to Barnes, the mortgage given by Barnes to secure the payment of the purchase money, the record showing the satisfaction of the mortgage, and the deed of J. F. Birch were all properly admitted in evidence. Most of the papers offered were in explanation of the one transaction, and tended to prove that the life estate bequeathed and devised to Nathaniel Burt for and during his life was received and enjoyed by him to the time of his death according to the terms of the Avill of his wife, and that the. small portion of interest not thus received is lawfully in the hands of John Birch avIiq now holds it for the appellant.

The fifth and sixth specifications of error are overruled and the judgment affirmed.