note, $57.97. The following is the conclu- I did the facts averred show an extension of sion of law as stated by the court: "(1) That time by an agreement between the appellee the plaintiff is entitled to recover of the de- and Holmes, it would be good. But the anfendant Merriman the amount due in said swer fails to disclose anything of that kind. causes of action, viz., $1,157.97."

The taking of the note of Holmes, together We find no infirmity in the complaint. It with the coynovit, was not of itself an extenalleges that the appellant was a non-resident sion of time. It is not averred that there was when the action against Holmes was com- any agreement, accompanying the execution menced, and until long after it was finally of the note by Holmes or the cognovit, that determined. This brings the case within the the appellee should not sue on the old indebtexception recognized in the case of Cox v. edness until the note of Holmes fell due. No Maddux, 72 Ind. 206, That was an action such an agreement is hinted at. For all that on a joint obligation. The learned judge appears in the answer, the appellee could who delivered the opinion in that case said: have sued on the “indorsement” and the old “That a judgment taken against one of the note the very next moment after the note was joint makers of a note or contract merges executed, without violating any agreement the cause of action, and bars a separate action or contract whatever. But suppose there had against the other maker or makers, is well- been an agreement that the appellant should settled law. There are, however, exceptions not sue Holmes on the old indebtedness until to this rule. Where one of two joint debtors his note became due, and then to take judghas died, a judgment against ihe survivor ment against him on that note by virtue of does not bar proceedings against the estate of the cognovit, we cannot understand how it the other. Another exception is where the can be claimed that that would have been an joint makers of the contract are not resi- extension of time. The result of the arrangedents of the same state, or all within the pro. ment was to obtain judgment against Holmes cess of any court in which the suit could be in the shortest possible time. But for the brought. The plain reason for these excep- cognovit, the earliest date at which judgment tions is that the holder of the obligation should could have been obtained was 10 days. The not be deemed to have waived his claim or agreement was an agreement whereby the remedy against any maker by reason of a sep- recovery of a judgment was hastened rather arate suit and judgment against another than postponed. An extension of time must maker, when a joint suit was impossible;" be such as will tie the hands of the creditor. citing Barnett v. Juday, 38 Ind. 86; Freem. It must be an agreement whereby the creditJudgm. § 234; Dennett v. Chick, 2 Greenl. or will lay himself liable to substantial dam191–194; Tappan v. Bruen, 5 Mass. 193. ages if he brings his action in advance of the The only question involved in that case was date to which the time has been extended. whether or not the fact that Cox was a res- Menifee v. Clark, 35 Ind. 304; Bucklen v. ident of another state than the state in which Huff, 53 Ind. 474; Nelson v. White, 61 Ind. Hutchinson resided created an exception to 139. the general rule that a judgment taken against This brings us to the special finding, one of two joint makers of a note or contract and as to it we need not spend much time. merges the cause of action, and bars a sep- The facts as found, and as alleged in several arate action against the other joint makers. of the paragraphs of the answer, show that But we are asked to overrule that case. This after the action against Holmes had been comwe are not inclined to do. We think that menced on the joint obligations he executed the principle upon which that case rests is to the appellee his individual note due one sound, and that the doctrine of merger so as day after date, and a cognovit authorizing an to release one joint debtor by an action and attorney named to confess judgment, and judgment against another, ought to be limit that the judgment which was rendered was ed, rather than extended. It is contrary to the upon the note so executed by Holmes, and spirit of our Code, and especially so since the not on the obligations now sued on. Upon Revision of 1881. If our conclusion as to the the note of Holmes the appellant never was complaint is right, then the first paragraph liable. He could not have been sued thereon. of the answer is clearly bad, and we do not It is true the note executed by Holmes was feel called upon to spend any time in consid- in consideration of the causes of action which ering it.

are involved in this action, but that did not It is well-settled law in Indiana that where authorize an action upon it against the appelthere is a joint or joint and several liability, lant, and hence the judgment that was renand one of the joint obligors is the principal dered against Holmes could not be a merger debtor and the other his surety, and that fact of any right of action against the appellant has been brought to the knowledge of the on the joint obligations. The most that can creditor, and thereafter he extends the time be said is that the judgment merged the right of payment to the principal for a valuable con- of action against Holmes on his individual sideration, without the consent of the surety, note. The execution of the note by Holines, such extension has the effect to release the under the facts alleged and found, did not surety. This is true notwithstanding the have the effect to merge the liability of the apfact that when the debt was created both of pellant, or to release or discharge him. We the debtors were principals, as the averments find no error in the record. Judgment afin the said paragraph of answer disclose, and 'firmed, with costs.

(121 Ind. 188)

lie to recover the money back, "upon the (Supreme Court of Indiana. Nov. 26, 1889.)

ground that the plaintiff has paid money

which he was under no obligation to pay, and FALSE REPRESENTATIONS-VOLUNTARY PAYMENT. which the party to whom it was paid had no ate old man, upon false representations made by right either

to receive or to retain,

and which, several, one of whom is an attorney, that they had had the true state of the facts been present a good cause of action against him, which they in his mind at the time, he would not have would prosecute, causing him ruinous litigation, paid.” Guild v. Baldridge, 2 Swan, 302; may be recovered by him, the doctrine of voluntary payment having no application to such a case. Lewellen v. Garrett, 58 Ind. 442; Brown v.

2. Whether the representations were such as Gravel-Road Co., 56 Ind. 110; Cross v. Herr, he had a right to rely on, and whether they were 96 Ind. 96. calculated to deceive him, are questions for the

An illiterate, weak-minded old man is injury.

duced to believe that another has a cause of Appeal from circuit court, Madison coun- action against him, upon which one who ty; D. Moss, Judge.

professes to be a lawyer says he is about to Action by Oliver Miller against Parker N. bring suit. Upon the supposition that the Ingalls et al. Judgment for plaintiff, from facts were as represented, a sum of money is which defendants appeal.

paid in order to save himself from expensive, W. A. Kittinger, L. M. Schwinn, and Hen- and, as it is made to appear to him, ruinous, ry & Ryan, for appellants. Robinson & litigation. It is conceded now that the other Lovett, for appellee.

had in fact no cause of action against him,

and that he was therefore, as we must as. MITCHELL, C. J. Miller instituted a suit sume, not about to involve him in expensive against Ingalls and another to recover a sum litigation. How can it be said that the money of money alleged to have been obtained from was paid with knowledge of the facts, and him by means of a conspiracy. It is charged without fraud or imposition? Where one, in the complaint that the defendants, one of for the fraudulent purpose of inducing anwhom was an attorney, falsely represented other to part with money or property, makes to the plaintiff, a mentally weak, illiterate, a statement of a fact which is untrue, and and infirm old man, that Ingalls had a mer- thereby obtains money which he had no right itorious cause of action against him, and to receive, and which it would be unconscionthat, unless the plaintiff settled and paid a able for him to retain, he is guilty of fraud, sum of money demanded, suit would be in- even though he may not have known at the stituted at once for a large amount, and that time that the statement was false. Bethell a judgment would be recovered against him, v. Bethell, 92 Ind. 318, and cases cited. It and that he would be subjected to costs, is said that the plaintiff had no right to rely trouble, and expense. It is alleged that, by upon the mere representation that one of the reason of the mental and physical infirmity defendants had a meritorious cause of action of the plaintiff, he was induced to believe against him upon which he was about to inthe false representations so made, and to pay stitute suit, and that the facts stated are not the defendants the sum of $125, and that In- sutlicient because the particular acts and galls had in fact no claim or cause of action statements made to the plaintiff are not set against him whatever. It is quite true, as out. Whether the alleged representations appellant contends, that if one, with full were such as the plaintiff had a right to rely knowledge of all the facts, voluntarily pays upon, or whether they were of a character money in discharge of a demand unjustly reasonably calculated to deceive such a permade upon him, be cannot afterwards recover son as he was, were questions of fact for the the money back, even though he should pro- jury. Representations might be futile and test at the time that he was not legally bound harınless when addressed to an active, sagato pay it. Town of Ligonier v. Ackerman, cious, well-informed man, and yet the same 46 Ind. 552; City of Indianapolis v. Vajen, scheme might utterly undo a weak-minded, 111 Ind. 240, 12 N. E. Rep. 311, and cases illiterate, old, or inexperienced man. "The cited. This is upon the principle that one who, design of the law is to protect the weak and with all the facts before him, and without credulous from the wiles and stratagems of any fraud, oppression, or imposition, decides the artful and cunning, as well as those his own case against himself, cannot after- whose vigilance and sagacity enable them to wards appeal to the courts to reverse his own protect themselves.” McKee v. State, 111 decision. Bond v. Coats, 16 Ind. 204. This Ind. 378–381, 12 N. E. Rep. 510. The law rule cannot, however, be invoked to shield is not blind to the fact that communities are one who, by means of false representations composed of individuals of varied degrees of as to existing facts, has procured money from intelligence and capacity, nor does it declare another who was ignorant of the true state of as matter of law what representations as to the facts, or who, on account of mental or existing facts may or may not be relied upphysical debility, was incapable of compre- on.

The averment that the defendants rephending or retaining the facts in his mind. resented that one of them had a good and Where money is paid upon the supposition meritorious cause of action against the plainthat a specific fact which it was supposed tiff, upon which suit would be instituted if would entitle the other to maintain an action money was not paid, was, it may be conis true, which fact is not true, an action will ceded, general in its character. It was, how

ever, sufficient to withstand a demurrer. AI Appeal from circuit court, Allen county;
motion to make the complaint more specific E. O’ROURKE, Judge.
would have presented a question of a differ T. E. Ellison and L. M. Ninde, for appel-
ent character. The reasons already given, in lants. Randall & Vesey, for appelfees.
support of the ruling of the court in holding
the complaint sufficient, sustain the ruling MITCHELL, C. J. Robert Work, late ot
of the court in overruling the appellant's mo- Allen county, died testate on the 3d day of
tion for judgment on the answers of the jury July, 1886. By his last will and testament,
to special interrogatories. The answers are to which, after it was first executed, there
not in conflict with the general verdict. were added two codicils, he disposed of all

Complaint is made that the court erred in his real and personal estate. One of the sub-
excluding certain evidence, and in giving jects of controversy arises out of the eighth
and refusing certain instructions. Assum- clause of the will, by the terms of which the
ing that the instructions are properly in the testator devised to his two daughters, Mary
record, it is sufficient to say, in respect to T. and Eliza J. Shoaff, an 80-acre tract of
the rulings complained of, that the applica- land in De Kalb county, which is described
tion of the principles already stated indicate as the “west half of the south-west quarter”
that the court committed no error. The evi- of a certain section, township, and range.
dence sustains the material allegations in the The testator never owned the tract described
complaint. 'he appellant obtained money in the will, but did own and have as part of
from a simple-minded, illiterate old man, his estate the west half of the north-east
which he had no right to receive, and which quarter of the section, township, and range
in equity and good conscience he ought not above mentioned. The devisees sought to
to retain. Without the least foundation for show these facts as a basis for the inference
80 doing, the appellant asserted that he had that the testator must have intended to dis-
been damaged by some remarks made con- pose of the property actually owned by him,
cerning him by the plaintiff below, and that and that the description as found in the will
ụnless he was paid he would institute suit must therefore have been the result of inad-
against him. The plaintiff denied having vertence or mistake. The ruling of the court
made the remarks imputed to him, and, even below was adverse to the devisees upon this
if everything had been true as charged by the point.
appellant, the latter could not have been in It is an established rule that the chancery
jured, nor had he any cause of action. He powers of a court cannot be invoked to re-
knew the incapacity of the person with whom form a will by eliminating words or phrases,
he was dealing, and the jury had abundant and supplying others, so as to make the in-
reason to conclude that the plaintiff below strument conform to what may be supposed
confided in the superior knowledge of the ap- to have been the real intention of the testa-
pellant and his attorney, and that he paid the tor. Funk v. Davis, 103 Ind. 281, 2 N. E.
money in the belief that the appellant had a Rep. 739; Judy v. Gilbert, 77 Ind. 96; Sher-
cause of action against him upon which he wood v. Sherwood, 45 Wis. 357. The reason
could maintain a suit. Worley v. Moore, 77 is that an action to reform a written instru-
Ind. 567. It does not lie in the appellant's ment is regarded as essentially an action for
mouth to say he ought to have known better, specific performance. A devisee is a mere
or that he should have been more diligent to volunteer, the making of a will being a vol-
ascertain his rights. There was no error. untary act. There is therefore no considera-
The judgment is affirmed, with costs. tion to support the action, as in actions to

reform deeds or contracts. “Volunteers under

wills have no equity whereon to found a suit (122 Ind. 134)

for specific performance.” Wig. Wills, 47. STURGIS et al. o. WORK et al.1 Extrinsic evidence may be admitted in a

proper case, when the effect of it is merely to (Supreme Court of Indiana. Nov. 26, 1889.) explain or make certain what the testator has

written, but such evidence is never admissiWILLS-CONSTRUCTION.

ble to show what the testator intended to 1. A will devising “the west half of the south-write. If the testator had devised the iand west quarter” of a certain section, which the tes- by some general description by which it vey the west half of the north-east quarter, owned if he had said, "all my land in a certain sectator never owned, will not be interpreted to con, might have been identified,-as, for example, by the testator, in the same section.

2. Where a will which devises the residue of tion, township,” or “the lot purchased by me (ne estate to the testator's two sons is followed by from A.," or "the tract of land occupied by a codicil which makes no new specific devises, but B.,”-and had then added an erroneous parrevokes and changes certain devises before made, and gives to all of his children equally all the resi- ticular description, a case would have been due of his estate not therein specifically devised presented for the admission of extraneous and bequeathed, the codicil will prevail, and carry evidence, within the rule which holds, where the residue to all the children.

3. Where a will devises 150 acres off of the side there is a false description, either of the of a certain tract to one devisee, and to another all devisee or of the thing devised, if the will the residue of the tract except the 150 acres there- nevertheless contains a sufficient general detofore devised, a codicil which changes the 150-acre scription of the person or thing it will take devise to 100 acres will not carry the extra 50 acres to the latter devisee.

effect, notwithstanding the erroneous partic 1 Rehearing denied.

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ular description. Cleveland v. Spilman, 25 | considered as giving utterance to the testaInd. 95; Winkley v. Kaime, 32 Ñ. H. 268; tor's intention concerning the disposition of Allen v. Lyons, 2 Wash. C. C. 475; 1 Redf. his estate on the day of his death, thereby Wills, 585. Extrinsic evidence is not ad- becoming in fact his last will and testament. mitted in any case with a view of reforming We have therefore two clauses of a will, both or adding anything to the will, but for the of which took effect at the same moment, the purpose of arriving at the real intent of the first of which directed that the residue of the testator by identifying the person or thing testator's real estate, not theretofore disposed generally described, and to remove the am- of, should go to his two sons, share and biguity resulting from the erroneous particu- share alike, while the last clause declared in lar description. Daugherty v. Rogers, 119 language equally unequivocal that all the resInd. 254, 20 N. E. Rep. 779. It is said that idue of his estate not therein specifically decourts should assume in every case, whether vised and bequeathed should go to all his there be a general description of the land de- children, share and share alike. While it is vised or not, that the testator intended to true that a codicil is to be so construed as not dispose of property of which he was the to interfere with the disposition of property owner, and that hence evidence ought to be made in the will, to any greater extent than admitted to show that a description, as con- is required to give full effect to the codicil, tained in the will, was a mistake, so as to it is also true that, if any of the provisions prevent wrong and injustice. To do this of the codicil are repugnant to provisions would, however, violate the fundamental contained in the will, the codicil is to be reprinciple that a will, in order that it may be garded as the expression of the testator's final regarded as the legal declaration of a man's determination upon the subject. The genintention which he wills to be performed eral position is well supported that, where after his death, must be in writing, signed the terms of the will are clear to give an esand witnessed, and that the intention of the tate, the words of a codicil must manifest an testator is always to be deduced from the intent equally clear to revoke it. Hearle v. words actually written in the will. That Hicks, 8 Bing. 475; Quincy v. Rogers, 9 which the statute requires to be in writing Cush. 291. It is undoubtedly settled, too, çannot be supplied by oral testimony. In re- that, where an estate is given in one clause spect to this point there was no error in the in clear and decisive terms, the estate so ruling of the court.

given cannot be taken away or cut down by After making various specific devises of any subsequent clause that is not as clear real estate, the testator, in the instrument and decisive as the one in which the estate originally signed as his will, disposed of what is given. Bailey v. Sanger, 108 Ind. 261,9 might remain in the following language: N. E. Rep. 159; Bruce v. Bissell, 119 Ind. 524“Tenth. The residue of my real estate, not 531, ante, 4, and cases cited; Roseboom v. heretofore disposed of, I give and devise ab- Roseboom, 81 N. Y. 356; Freeman v. Coit, solutely in fee-simple to my sons, Wesley I. 96 N. Y. 63. Work and Robert Carey Work, share and Neither of the clauses in question purports share alike." By the terms of the second to be a devise of a particular estate to the per-: codicil to the will the testator first revoked a sons therein named. Both are residuary in devise of certain real estate made to one of character, and purport to be a disposition of his daughters, and directed that it should any undispused of residue that may be owned constitute a part of the residue of his estate. by the testator when the will takes effect. Certain absolute bequests and devises there". Residue' means all of which no effectual tofore made to his wife were also modified disposition has been made by the will other and changed, so that in case of her marriage than the residuary clause.” Formerly a tesor death the property devised and bequeathed tator was only permitted to devise the real to her was to become a part of the residue of estate which he actually owned at the time his estate. This codicil closed with the fol- the will was made, but by statute (section lowing clause: “I give, devise, and bequeath 2567, Rev. St. 1881) after-acquired real estate to all my children and their issue, share and may pass by a will, the same as that owned share alike, all the residue of my estate not at the time of the execution of the will. Reherein specifically devised and bequeathed.” siduary clauses are employed more especially,

A controversy arose over the two clauses so far as they relate to real estate, to dispose of the will last above set out. Accepting as of after-acquired property, and to carry lapsed correct the statement that all rules for the or void devises. Each of the clauses under construction of wilis are valuable only so far as consideration purports to dispose of all the they aid in ascertaining the testator's inten- real estate owned by the testator not theretotion, the question is, can it fairly be said that fore specifically devised. This, of course, the testator intended both of these residuary means all the real estate of which he might. clauses to have effect? The intention of the be the owner at the date of his death, which testator is to be collected from the entire had not been theretofore otherwise disposed will, and all papers which constitute the tes- of. Both clauses cover the same subjecttamentary act, including will and codicils, matter. The first in clear and decisive lanmust be regarded as constituting the will. Iguage gives all the residue to the testator's Schouler, Wills, § 468. All these, no matter two sons. The last, in language equally when actually written or signed, are to be clear and decisive, gives the same subject

matter to all of his children, share and share with costs, with directions to the court to realike. It should be observed that substan- state its conclusions of law, and to render tially no real estate is devised or disposed of judgment in consonance with this opinion. by the codicil in question, except what may be disposed of by the last or residuary clause.

(121 Ind. 187) The language used in the codicil must there

STATE ex rel. HOWE V. BOND. fore be regarded as referring to the real es

(Supreme Court of Indiana. Nov. 26, 1889.) tate specifically disposed of in the will. Both

GUARDIAN AND WARD. the will and the codicil came into operation

Where a guardian's account on its face and effect together, and together constitute shows him indebted to his wards, but he has realthe last will and testament. They cannot be ly charged himself therein with a sum, paid him by read as though the will spoke as of one date mistake by the administrator of the estate of the and the codicil of another. Except as we debtedness, action cannot be maintained on the

wards' father, greater than the amount of the inhave already seen, in so far as they are re- guardian's bond as for money in his hands due the pugnant to each other, the codicil must pre-wards. vail, as being the “later and better thought”

Appeal from circuit court, Union county; and final expression of the testator. In re-F. S. SWIFT, Judge. spect to the point here involved the court

Action by the state, ex rel. John P. Howe, gave an erroneous construction to the will. against Levi L. Bond. Judgment for defendThe last clause must control the undisposed ant. Plaintiff appeals. of residue.

Edward T. Dickee and John R. Parmelee, By the fifth clause of the will the testator for appellant. Harrison, Miller & Elam, devised to his daughter Sarah Ellen Hilligass for appellee. 150 acres of land, to be taken off the east side of a certain described tract, and by the sev ELLIOTT, J. William Brown was appointenth clause he devised to his son Wesley I. ed guardian of the infant children of EbeneWork, and Elizabeth Work, his daughter, all zer Howe, deceased, and the appellee became the remainder of the tract, except the 150 the surety on the bond executed by him as acres theretofore devised to Mrs. Hilligass. guardian. Brown reported to the court that By a codicil subsequently executed tlie testa- he had collected for his wards various sums tor modified the fifth clause of his will so as of money, amounting in the aggregate to $1,to reduce the number of acres previously giv- 211.86, and in this amount was included en to Mrs. Hilligass from 150 to 100 acres. money collected from the administrator of The seventh clause, in which the remainder Ebenezer Howe's estate,-$400 at one time of the tract, except 150 acres, as originally and $690.40 at another. On the face of his devised to Mrs. Hilligass, was devised to reports, Brown was chargeable with $372.90 Wesley I. Work and his daughter, was in no at the time of his resignation. The adminiswise changed. The question is whether the trator of Ebenezer Howe's estate, by inistake, 50 acres taken from Mrs. Hilligass by the paid Brown $400 more than he was entitled codicil were carried to Wesley I. and his to receive, and Brown included in the charge daughter by force of the seventh clause in against himself the $400 overpaid by the adthe will. A negative answer must be given ministrator. The overpayment was made to this question. The modification of the because the parties at the time of the final setfifth clause by taking off 50 acres from the tlement had forgotton the former payment, tract originally devised to Mrs. Hilligass did and omitted to take it into account. The not, without more, add anything to the sev- case is really just this: Brown, on the face enth clause, which gave the remainder of the of his reports, owed the wards $372.90; but tract, excepting 150 acres, to the parties he charged himself with $400 which had been therein named. The rule is that where an paid to him by mistake, and which did not estate is given to two, if the part given to belong to his wards. The appellant's contenone fail from any cause, that part, without tion is that an action can be maintained on a fresh disposition of it, will not go in aug- the bond, for the reason that the wards are mentation of the part given the other, but entitled to the money in Brown's hands, and will fall into the residue, or go to the next that he cannot withhold it from them. The of kin. 2 Jarın. Wills, 368. Where a tract money does not belong to the wards, nor to of land or sum of money is given in specified the guardian. It belongs to the administraproportions to two persons, we can discover tor, who paid it by mistake to Brown. The no principle which would support the con- parties for whose benefit this action is proseclusion, in case the share given one was di- cuted have no right to the money, and it is minished or entirely revoked, that it would, no part of their estate. The sureties on in the absence of some express words, go to Brown's bond undertook that he should the other. Upon this point the court below faithfully account for the money of his wards; fell into an error.

error. In respect to the other but the money involved in this dispute was question suggested, involving the disposition not that of the wards, and the surety on the of the money arising from the life insurance guardian's bond is not liable for its misappolicy, the conclusion of the court was cor- propriation. The claim of the wards to the rect. In so far as the conclusions of law money is no better than that of the guardian, stated by the court are not in accord with the but neither party has the shadow of a legal foregoing opinion, the judgment is reversed, 'right to it. Judgment afirmed.

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