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Katheryne M. Guynn. Judgment for plaintiff, and defendant appeals. Affirmed.

D. F. Brooks, of Wabash, for appellant. Warren G. Sayre and Nelson G. Hunter, both `of Wabash, for appellee.

SHEA, J. Action by appellee against appellant, Katheryne M. Guynn, on a contract whereby she agreed to give William A. Newman a portion of money to be collected by her from the sale of certain hotel furnishings. The contract was assigned by Newman to appellee.

The complaint in substance alleges: That on March 12, 1908, appellant entered into the following contract: "For value received, I hereby agree to give William A. Newman the first money collected to the amount of $3,000.00 on the sale of the Tremont Hotel furnishings, and after I have received $3,300 therefrom, the balance shall be equally divided between the parties hereto as collected. It is further agreed that in case of the sale of the power house equipment the net receipts therefrom shall be equally divided as collected. In witness whereof we have hereunto set our hands in duplicate this 12th day of March, 1908. [Signed] Katheryne M. Guynn. [Signed] William A. Newman." That the consideration for this contract was that Newman would dismiss certain suits he had pending against her in the Wabash circuit court, one by William A. Newman v. Katheryne Guynn to dissolve a partnership between them and for an accounting, one to require appellant's husband to file an inventory and give additional bond as administrator of the estate of Mary A. Newman, and one to recover certain real estate and insurance money and also to allow a default to be taken against him in said court in a suit to set aside the probate of the will of Mary A. Newman, and to make proof of a subsequent will. That he would refrain from bringing certain other suits against her, and consent to the sale of the property described in the agreement, all of which Newman did. That on the same day appellant sold the Tremont Hotel furnishings for $10,000, $3,000 of which she received on account of the sale. That Newman was entitled to recover the first $3,000 received by appellant, and half of the residue, or $1,850, $2,500 of which is due and unpaid, for which this action is brought. Appellant has paid Newman on said account $500, and he has made demand for the residue, but payment has been refused. That on or about July 1, 1909, William Newman, for value, sold and assigned the contract to appellee by writing on the back thereof: "For value received I hereby assign this contract to Lawrence L. Daugherty, June 22, 1909. William A. Newman." That on the same day he also assigned the contract to appellee in writing as follows: "For value received, I hereby assign, trans

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erty, of Wabash, Indiana, the contract to which this is attached (being the contract sued on) as an assignment thereof and all avails thereof for himself and as trustee. And said Daugherty is hereby authorized and empowered to collect whatever is due and all that is to become due under said contract by suit or otherwise in his own name. Done at Wabash, Indiana, this 22d day of June, 1909. William A. Newman." That there is due appellee under the contract the sum of $2,500, and interest for a year and a half, which is wholly unpaid, and for which amount judgment is demanded.

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Appellant's motion to make the complaint more specific was overruled, and an answer in four paragraphs was then filed; the first a general denial.

The second avers, in substance, that appellant admits the execution of the contract sued on, but says after making it, Newman, instead of allowing default to be taken in the case of Katheryne M. Guynn v. William Newman et al., described in the complaint, did allow the default to be taken, but on the same day after the proof has been heard procured his attorney to request the court not to render judgment in the case until further notice. The court, upon this request, withheld its decision authorizing the will for the probate of which suit was brought, to be probated, and, while the decision was held in abeyance, one Harry Newman began a suit to resist the probate of the will; that the will is not yet probated and the suit still pending; that Harry Newman was unable to give bond to set aside the probate of the will, and, if same had been allowed to be probated as agreed upon, the suit to resist the probate would not have been brought, all of which facts were well known to William A. Newman; that by reason of these facts, and the conduct of said William, appellant has been compelled to defend the suit at an expense of $500; that as a part of the contract sued on, and the consideration therefor, William A. Newman agreed to assist her in every way in his power to perfect her title to certain property in Wabash county given her under the will and a deed from her mother, Mary A. Newman, and to make an amicable settlement of her mother's estate, but, in violation of his promise, he immediately set to work to defeat this result, and had Harry Newman bring suit in the Wabash circuit court asking to have set aside a deed of conveyance from Mary A. Newman to appellant for 108 acres of land in said county, and also bring two other suits against her for the purpose of antagonizing her; that she was compelled to defend these suits at an expense of $1,000, in addition to the $500 spent in defending the suit to resist the probate of the will, which sums she asks may be recouped against

The third paragraph avers that she collected, pursuant to the contract sued on, $6,022.69, and paid William Newman $500 in cash; that by a subsequent oral agreement between her and said William, and before the assignment of the contract to appellee, it was agreed that out of the money collected under the contract certain bills (which are set out) owing by appellant and William A. Newman jointly, and by Newman himself, were to be paid; that it was further agreed between them that one-half of the proceeds from the sale of the saloon, and the furniture and fixtures in the sum of $500, might be retained by Newman, making a total paid to him of $2,038.17; that certain other indebtedness of said William should be paid out of the funds arising from the sale of the property (setting out the amounts), and a copy of a contract to this effect is made a part of this paragraph of answer by exhibit; that appellant has made all these payments and stands ready to abide the order of the court and pay all the residue of the money in her hands belonging to said Newman or his grantee in the contract sued on whenever the court may direct; that there was nothing due appellee at the time of the commencement of this action; and she asks judgment for costs.

The fourth paragraph avers full payment by appellant to appellee's grantor of all money collected under the contract sued on, before the same was assigned and suit brought.

Appellee filed demurrers to the second and third paragraphs of appellant's answers, which the court sustained as to the second and overruled as to the third. Appellee then replied in general denial to the third and fourth paragraphs of answer, and also filed two affirmative paragraphs of reply to the third. The issues formed were submitted to the court for trial. After hearing the evidence, the court rendered judgment in favor of appellee for $2,825.

[1] The first error assigned and argued is that the motion to make the complaint more specific should have been sustained for the following reasons: (1) That plaintiff (appellee) be required to state in his complaint the title of the suits in the Wabash circuit court that were to be dismissed by him. (2) The title of the case in which William A. Newman was to suffer a default. (3) Wheth

er Newman did dismiss such causes as were agreed upon and abandon such claims.

The complaint alleges a substantial compliance with the contract. The acts to be performed by Newman are sufficiently set out, and it is alleged generally that he performed all his part of the agreement. This, we think, was sufficient for the purposes of the question involved, and therefore no error was committed in overruling the motion to make the complaint more specific.

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ruling of appellant's demurrer to the complaint. The complaint contains all the essential allegations, and no error was committed in overruling the demurrer thereto.

Appellant also assigns that the court erred in sustaining appellee's demurrer to her second paragraph of answer to the complaint.

[3] The theory of the second paragraph of answer, from the allegations contained therein, is difficult to define. It is, however, the judgment of the court that all the material allegations contained therein might have been heard under the other paragraphs of answer filed, and no error was committed by the court in sustaining the demurrer thereto. Cloverdale v. Edwards, 155 Ind. 375, 58 N. E. 495; Metzger v. Hubbard et al., 153 Ind. 189, 54 N. E. 761; Hardison v. Mann et al., 20 Ind. App. 404, 50 N. E. 899; Larned et al. v. Maloney, 19 Ind. App. 199, 49 N. E. 278.

Appellant's learned counsel states that the vital question involved in the issues here is raised by the fourth assignment of error, which is the overruling of the motion for a new trial, in support of which eight reasons are assigned. The first and second are that the judgment of the court is contrary to law, and not sustained by sufficient evidence. The fourth, seventh, and eighth reasons question the ruling of the court in admitting in evidence over appellant's objection the contract sued on between appellant and William A. Newman. The fifth and sixth causes are especially referred to by counsel in argument. The fifth is that the damages assessed by the court are excessive, and the sixth that the amount of recovery is erroneous, being too large.

[4] The argument upon the fifth and sixth assignments is based wholly upon the fact that the court allowed interest upon the debt from date of the contract. It is earnestly urged by appellant's counsel that no interest could be allowed except where there is a special agreement to pay, or where there has been a demand for payment and a refusal, citing authorities sustaining these propositions.

The rule has been thoroughly settled in this state by the Supreme Court that, where there has been a vexatious delay in the payment of an amount due, interest may be charged from the date when due. West, 9 Ind. 400; Killian v. Eigenmann, 57 Rogers v.

Ind. 480; Hazzard et al. v. Duke, 64 Ind. 220.

[5] From an examination of the evidence we are of the opinion that the court was warranted in finding there had been a vexatious delay in the payment of the amount of this claim, and therefore this court will not disturb the judgment of the lower court upon this question.

There was some evidence heard by the court upon every material point involved in

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court will not disturb the verdict of the lower court upon the weight of the evidence. -No error was committed in the introduc

tion of the contract in evidence. Judgment affirmed.

(53 Ind. App. 567)

SHUEY v. LAMBERT. (No. 8,024.) (Appellate Court of Indiana. June 17, 1913.) 1. EXECUTORS AND ADMINISTRATORS (§ 526*)—

FOREIGN ACCOUNT-EXCEPTIONS.

Where testatrix's husband objected to the account of her executor with reference to the proceeds of sale of certain Indiana real erty, denying the executor's right to charge in

his account and obtain credit for certain expenses of testatrix's last sickness and funeral incurred without the husband's knowledge, as against his interest in the proceeds to such real property, the husband's exceptions were sufficient to challenge the executor's right to obtain credit for the several items objected to, so as to reduce the amount due objector below one-third of the proceeds of the Indiana real estate.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 2350-2354; Dec. Dig. § 526.*]

2. EXECUTORS AND ADMINISTRATORS (§ 504*)

-AMENDED REPORT-JUDGMENT.

Where exceptions are sustained to the report of an executor, and he is required to file an amended report to conform to the court's findings, the amended report filed in obedience to the order is not an amended pleading, but the report as amended and approved is a judgment of the court, so that the objector's exceptions to the court's conclusions are effective to test the correctness thereof on any question affecting its legal rights which was originally raised by defendant's exceptions, unless the amendments ordered have cured the error.

[Ed. Note.-For other cases, see Executors

and Administrators, Cent. Dig. $8 2157-2167;

Dec. Dig. 504.*]

3. EXECUTORS AND ADMINISTRATORS (§ 504*)

FINAL REPORT-CREDIT CLAIMS.

6. CURTESY (§ 12*)-DEDUCTIONS-PROCEEDS (8 OF REAL PROPERTY-STATUTES.

Burns' Ann. St. 1908, § 3016, provides that, if a wife dies testate or intestate leaving a widower, one-third of her real estate shall descend to him subject to its proportion of her debts contracted before marriage. Held, that the surviving husband of a deceased wife is entitled to one-third of her real estate under such section, subject only to its proportion of her antenuptial debts, unless he has waived his right thereto or estopped himself to assert such right, and the executor was not entitled to deduct from the proceeds of the husband's interest a mortgage on the land, executed subsequent to the marriage, unless the husband joined therein, nor expenses of the wife's last sickness, funeral, etc.

Cent. Dig. §§ 43-64; Dec. Dig. § 12.*] [Ed. Note.-For other cases, see Curtesy, 7. CURTESY (§ 12*)-EXPENSES OF LAST ILLNESS-FUNERAL-DEDUCTION FROM ESTATE.

Where a husband was not consulted concerning his wife's funeral, and credit was extended for expenses incurred not to him but to her estate, he was not liable therefor so as to authorize proportionate deduction thereof from his interest in the proceeds of a sale of real property belonging to the wife.

[Ed. Note.-For other cases, see Curtesy, Cent. Dig. §§ 43-64; Dec. Dig. § 12.*] Appeal from Superior Court, Elkhart County; Vernon W. Van Fleet, Judge.

Judicial settlement of the accounts of Melvin A. Lambert, executor of the will of Malissa Alice Shuey, deceased, to which James Francis Shuey filed exceptions. From a decree overruling the exceptions and allowing the account, the exceptant appeals. Reversed, with instructions.

C. C. Raymer, of Elkhart, for appellant. James L. Harman, of Elkhart, for appellee.

FELT, J. Appellant excepted to the final

report of the appellee as executor of the will of his deceased wife, Malissa Alice Shuey. Appellant's wife died testate, in the state of Claims of an executor in his final report Michigan, on April 6, 1909, the owner of real for credits against the funds of the estate are estate in Elkhart county, Ind., worth apin the nature of separate complaints, and ex-proximately $4,000, and also left an estate ceptions thereto place the burden on the executor and require him to establish by compe- in Michigan of about $600. Appellant at tent evidence the correctness of his report in the time of his wife's death and at the time respect to all matters embraced in the excep- she went to Michigan, was a resident of tions. Argenta, Ill., where he was postmaster.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 2157-2167; Dec. Dig. § 504.*]

4. EXECUTORS AND ADMINISTRATORS (8 504*) -FINAL REPORT-EXCEPTIONS.

The report of an executor and exceptions thereto stand as the complaint and answer of the parties and constitute the issue raised.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 2157-2167; Dec. Dig. § 504.*]

5. EXECUTORS AND ADMINISTRATORS (§ 504*) -FINAL REPORT-OBJECTIONS-FINDINGS. A rule that, where the court makes a special finding, failure to find a material fact is equivalent to finding such fact against the person having the burden of proof applies to a hearing on objections to the report of an ex

ecutor.

[Ed. Note. For other cases, see Executors Note.-For and Administrators, Cent. Dig. §§ 2157-2167; Dec. Dig. § 504.*]

Decedent's will was duly probated in the state of Michigan, where she was residing at the time of her death. Appellee, Melvin A. Lambert, qualified as executor of the will and also caused the same to be duly recorded in Elkhart county, Ind., as by law provided, where ancillary proceedings were had in said state. By the terms of the will appellant was given no part of the estate of his deceased wife, though she referred to him as her beloved husband and gave as her reason for not willing him any part of her property that she believed his children would get it from him and she did not want them to have it. Appellant filed his election to take under the laws of descent of the state of Indiana, and asked that the assets of the estate be marshaled and that no part of his

one-third of the Indiana real estate be used to pay debts of the estate. The Indiana real estate was sold by the executor on order of court, and the executor charged himself with all the proceeds of the sale in his final report.

Trial was had on appellant's exceptions to appellee's final report in said estate, and on request the court made a special finding of facts and stated its conclusions of law thereon. Appellant duly excepted to each conclusion of law, and thereupon, in pursuance of the order of the court, appellee filed an amended final report which was approved by the court, to which approval appellant duly excepted. Appellant thereupon filed his motion for a new trial on the ground that; (1) The decision of the court is contrary to law, and (2) is not sustained by sufficient evidence. The motion for a new trial was overruled, appellant excepted, and appealed to this court.

The errors assigned are that the court erred in each of its first, fourth, and fifth conclusions of law, in approving the amended final report of appellee, and in overruling appellant's motion for a new trial. The facts as far as material to the questions to be decided, in addition to those already stated, are, in substance, as follows: That the estate is pending and unsettled in St. Joseph county, state of Michigan; that appellee received from the sale of Indiana real estate $4,050 and rents amounting to $199.05 and claimed credits against the same aggregating $3,162.56. As against appellant these credits were deducted from the price of the real estate, leaving a balance of $887.44, the onethird of which, or $295,82, according to the amended report, is due appellant as his share of the proceeds from the sale of the real estate. The credits deducted from the money received from the sale of the real estate included court costs and other expenditures incident to the sale of the real estate, taxes, part of the executor's fees and expenses, $190 of $225 attorney's fees allowed in the estate, a mortgage paid by appellee of $2,575.80, $66 for medical services rendered decedent in her last sickness by a physician in Michigan, and $90 for a burial casket, which was ordered by appellee. The court also found that the assets of the estate are not sufficient to give to appellant one-third of the real estate in Indiana free from debts, and that a part thereof is required to pay the debts of said estate; that appellee, Melvin A. Lambert, was a brother of decedent, and at the time of her sickness and death appellant was at his home in Illinois, and his location was well known to appellee and the other relatives of decedent who intentionally failed to notify appellant of his wife's sickness and death, though they had ample authority and time to have done so before her death; that he did not learn

that they failed to so notify him in order that he should be deprived of the opportunity of purchasing his wife's burial casket or attending her funeral.

The first conclusion of law is that the one-third interest of appellant in said real estate is subject to the indebtedness of decedent in so far as is necessary to pay the debts of her estate. The fourth is that appellant is not personally liable for $90, the alleged cost of a casket purchased in Michigan for his deceased wife without his knowledge or approval, but that the same is a proper charge against her estate. The fifth is that $66 paid a physician in Michigan is a proper charge against the estate and should be allowed as a credit to the executor.

Appellant's amended exceptions to appellee's final report challenged the right of appellee to charge in his account and obtain credit for certain expenses of last sickness and funeral incurred in the state of Michigan, without his knowledge or consent, and also certain costs of administration in that state; that, at the time of the death of his wife, his property of every kind and character did not exceed $300, and she had an estate worth $5,000; that by the laws of Indiana he was entitled to one-third of the Indiana real estate, free from debts of the estate contracted after marriage, and the Elkhart circuit court had previously entered an order to that effect; that, in violation of said order and contrary to law, appellee has used and expended the greater part of the proceeds of the sale of his one-third of said real estate in payment of debts of said estate and for costs of administration; that the debts so allowed and paid were contracted by decedent subsequent to her marriage with him.

[1] Appellant's exceptions to the final report were sufficient to challenge the right of the appellee to obtain credit for the several items so as to reduce the amount due him below the one-third part of the proceeds from the sale of the Indiana real estate. Major et al. v. Miller et al., 165 Ind. 275, 278, 75 N. E. 159.

[2] Where exceptions are filed to a final report of an executor, and, upon trial of the issues so joined, some of the exceptions are sustained, and the executor ordered to amend his report in accordance with the finding of the court, which he does, and the court thereupon approves the report, it has been held that such amended report filed in obedience to the order of the court after trial of the exceptions is not filed in the sense of an amended pleading, and that the report as amended and approved in such case is in fact the judgment of the court. From this it follows that appellant's exceptions to the conclusions of law are still effective to test the correctness of such conclusions on any question affecting his legal rights which was originally raised by such exceptions, unless

made by the executor have cured the error, his one-third of the deceased wife's real esif any, shown by such exceptions when taken. | tate free from her antenuptial debts, but unMcDonald v. Moak, 24 Ind. App. 528, 57 N. E. 159; Johnson v. Central Trust Co., 159 Ind. 605-608, 65 N. E. 1028.

In McDonald v. Moak, supra, it is also held that a motion for a new trial on the ground that the decision of the court is not sustained by sufficient evidence and is contrary to law is a proper way to test the correctness of the court's approval of such amended report. See, also, Wolverton v. Wolverton, 163 Ind. 26-31, 71 N. E. 123.

[3] The claims of an executor in his final report for credits against the funds of the estate are in the nature of separate complaints or allowances, and exceptions thereto place the burden on the executor and require him to establish by competent evidence the correctness of his report in respect to all matters embraced in the exceptions.

der the rule of stare decisis recognized the question as settled and announced that it had become a rule of property. The court, however, held that it was not inclined to extend the application of the rule, and refused to follow it in that case because the question involved a mortgage, in the execution of which the husband had joined, and other specific liens, on real estate, and for the further reason that the question there arose between heirs to the property and did not involve the question of the payment of general debts of the estate of the deceased wife out of the fund derived from the sale of the husband's one-third part of real estate inherited from her.

In Hampton v. Murphy, 45 Ind. App. 513, at page 519, 86 N. E. 436, at page 439, this court, in passing upon the rights of a sur[4] The report and the exceptions thereto viving husband under section 3016, supra, stand as the complaint and answer of the said: "It is not therefore subject to the respective parties. Spray v. Bertram, 165 payment of the general debts of the deceasInd. 13, 74 N. E. 502, and cases cited; Wy-ed wife. ed wife. He takes the one-third under the song v. Nealis, 13 Ind. App. 165-169, 41 N. statute absolute, and his right cannot be E. 388.

[5] The rule also applies that, where the court makes a special finding, failure to find a material fact is the equivalent of finding such fact against the party having the burden of proving the same. Wysong v. Nealis, supra, 13 Ind. App. 173, 41 N. E. 388; Hibben Dry Goods Co. v. Ricks, 26 Ind. App. 646-649, 59 N. E. 938; Henry v. Central Trust Co., 40 Ind. App. 369-370, 82 N. E. 120. [6] Section 3016, Burns' 1908 Statutes, provides: "If a wife die testate or intestate leaving a widower, one-third of her real estate shall descend to him, subject, however, to its proportion of the debts of the wife contracted before marriage." Under this statute appellant asserts his right to the full one-third part of the proceeds from the sale of the Indiana real estate and claims that none of the credits by which his interest is reduced is for a debt contracted prior to his marriage to the decedent.

It is settled by the decisions of this and our Supreme Court that, under the aforesaid statute, the surviving husband of a deceased wife is entitled to one-third of her real estate, subject only to its proportion of her debts contracted before marriage, unless he has in some way waived his right thereto or estopped himself to assert such right. Kemph v. Belknap, 15 Ind. App. 77, 43 N. E. 891; Weaver v. Gray, 37 Ind. App. 35-39, 76. N. E. 795; Banta v. Smith, 41 Ind. App. 364-366, 83 N. E. 1017; Roach v. White, 94 Ind. 510-512; Herbert v. Rupertus, 31 Ind. App. 553-555, 68 N. E. 598; Leach v. Rains, 149 Ind. 152-157, 48 N. E. 858.

In the case of Kinney v. Heuring, 44 Ind. App. 590, 87 N. E. 1053, 88 N. E. 865, this court in an opinion written by Rabb, J., criticised the reasoning and conclusion of

molested, except in case where he has waived it by agreement or has estopped himself from any claim to it. If the husband has joined his wife in the execution of a mortgage upon her real estate, he is estopped from denying the jurisdiction of the probate court to order all the real estate sold thus mortgaged, if necessary to pay and discharge the mortgage lien."

The finding of facts shows the payment of a mortgage to Melvin A. Lambert by the executor amounting to $2,575.80, but it does not show that this mortgage was for a debt contracted before marriage, nor does it appear that the husband joined in its execution or even that it was upon the real estate sold by appellee. If the mortgage was executed before marriage, by the terms of the statute the husband's interest is subject to its proportion of the debt.

The court stated its conclusions separately as to the items for the physician's services and the burial casket. These items were filed and allowed as credits against the funds of the estate derived from the sale of the Indiana real estate, and the court found that each item is a proper charge against the estate and should be allowed as a credit to the executor, and also approved the amended report which deducted one-third of the amount from appellant's share of the Indiana real estate. If the court was warranted in finding these items to be debts of the estate, it follows that they are not debts of the appellant. No facts are found to show that they are debts of the decedent for which appellant's interest in the real estate may be taken in payment, and therefore it was error to deduct one-third of these items from appellant's share of the Indiana real estate.

Appellee contends that on the facts of this

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