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note, $57.97. The following is the conclusion of law as stated by the court: "(1) That the plaintiff is entitled to recover of the defendant Merriman the amount due in said causes of action, viz., $1,157.97."

did the facts averred show an extension of time by an agreement between the appellee and Holmes, it would be good. But the answer fails to disclose anything of that kind. The taking of the note of Holmes, together We find no infirmity in the complaint. It with the cognovit, 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 laken 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 the 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. Judgm. § 234; Dennett v. Chick, 2 Greenl. 191-194; Tappan v. Bruen, 5 Mass. 193. The only question involved in that case was whether or not the fact that Cox was a resident of another state than the state in which Hutchinson resided created an exception to the general rule that a judgment taken against one of two joint makers of a note or contract merges the cause of action, and bars a separate action against the other joint makers. But we are asked to overrule that case. This we are not inclined to do. We think that the principle upon which that case rests is sound, and that the doctrine of merger so as to release one joint debtor by an action and judgment against another, ought to be limited, rather than extended. It is contrary to the spirit of our Code, and especially so since the Revision of 1881. If our conclusion as to the complaint is right, then the first paragraph of the answer is clearly bad, and we do not feel called upon to spend any time in considering it.

It is well-settled law in Indiana that where there is a joint or joint and several liability, and one of the joint obligors is the principal debtor and the other his surety, and that fact has been brought to the knowledge of the creditor, and thereafter he extends the time of payment to the principal for a valuable consideration, without the consent of the surety, such extension has the effect to release the surety. This is true notwithstanding the fact that when the debt was created both of the debtors were principals, as the averments in the said paragraph of answer disclose, and

It must be an agreement whereby the creditor will lay himself liable to substantial damages if he brings his action in advance of the date to which the time has been extended. Menifee v. Clark, 35 Ind. 304; Bucklen v. Huff, 53 Ind. 474; Nelson v. White, 61 Ind. 139.

Upon

This brings us to the special finding, and as to it we need not spend much time. The facts as found, and as alleged in several of the paragraphs of the answer, show that after the action against Holmes had been commenced on the joint obligations he executed to the appellee his individual note due one day after date, and a cognovit authorizing an attorney named to confess judgment, and that the judgment which was rendered was upon the note so executed by Holmes, and not on the obligations now sued on. the note of Holmes the appellant never was liable. He could not have been sued thereon. It is true the note executed by Holmes was in consideration of the causes of action which are involved in this action, but that did not authorize an action upon it against the appellant, and hence the judgment that was rendered against Holmes could not be a merger of any right of action against the appellant on the joint obligations. The most that can be said is that the judgment merged the right of action against Holmes on his individual note. The execution of the note by Holmes, under the facts alleged and found, did not have the effect to merge the liability of the appellant, or to release or discharge him. We find no error in the record. Judgment affirmed, with costs.

(121 Ind. 188)

INGALLS et al. v. MILLER. (Supreme Court of Indiana. Nov. 26, 1889.) False RepresentATIONS-VOLUNTARY PAYMENT. 1. Money obtained from a weak-minded, illiterate old man, upon false representations made by several, one of whom is an attorney, that they had a good cause of action against him, which they would prosecute, causing him ruinous litigation, may be recovered by him, the doctrine of voluntary payment having no application to such a case. 2. Whether the representations were such as he had a right to rely on, and whether they were calculated to deceive him, are questions for the jury.

lie to recover the money back, "upon the ground that the plaintiff has paid money which he was under no obligation to pay, and which the party to whom it was paid nad no right either to receive or to retain, and which, had the true state of the facts been present in his mind at the time, he would not have paid." Guild v. Baldridge, 2 Swan, 302; Lewellen v. Garrett, 58 Ind. 442; Brown v. Gravel-Road Co., 56 Ind. 110; Cross v. Herr, 96 Ind. 96.

An illiterate, weak-minded old man is induced 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.

W. A. Kittinger, L. M. Schwinn, and Henry & Ryan, for appellants. Robinson & Lovett, for appellee.

MITCHELL, C. J. Miller instituted a suit against Ingalls and another to recover a sum of money alleged to have been obtained from him by means of a conspiracy. It is charged in the complaint that the defendants, one of whom was an attorney, falsely represented to the plaintiff, a mentally weak, illiterate, and infirm old man, that Ingalls had a meritorious cause of action against him, and that, unless the plaintiff settled and paid a sum of money demanded, suit would be instituted at once for a large amount, and that a judgment would be recovered against him, and that he would be subjected to costs, trouble, and expense. It is alleged that, by reason of the mental and physical infirmity of the plaintiff, he was induced to believe the false representations so made, and to pay the defendants the sum of $125, and that Ingalls had in fact no claim or cause of action against him whatever. It is quite true, as appellant contends, that if one, with full knowledge of all the facts, voluntarily pays money in discharge of a demand unjustly made upon him, be cannot afterwards recover the money back, even though he should protest at the time that he was not legally bound to pay it. Town of Ligonier v. Ackerman, 46 Ind. 552; City of Indianapolis v. Vajen, 111 Ind. 240, 12 N. E. Rep. 311, and cases cited. This is upon the principle that one who, with all the facts before him, and without any fraud, oppression, or imposition, decides his own case against himself, cannot afterwards appeal to the courts to reverse his own decision. Bond v. Coats, 16 Ind. 204. This rule cannot, however, be invoked to shield one who, by means of false representations as to existing facts, has procured money from another who was ignorant of the true state of the facts, or who, on account of mental or physical debility, was incapable of comprehending or retaining the facts in his mind. Where money is paid upon the supposition that a specific fact which it was supposed would entitle the other to maintain an action is true, which fact is not true, an action will

paid in order to save himself from expensive, and, as it is made to appear to him, ruinous, litigation. It is conceded now that the other had in fact no cause of action against him, and that he was therefore, as we must assume, not about to involve him in expensive litigation. How can it be said that the money was paid with knowledge of the facts, and without fraud or imposition? Where one, for the fraudulent purpose of inducing another to part with money or property, makes a statement of a fact which is untrue, and thereby obtains money which he had no right to receive, and which it would be unconscionable for him to retain, he is guilty of fraud, even though he may not have known at the time that the statement was false. Bethell v. Bethell, 92 Ind. 318, and cases cited. It is said that the plaintiff had no right to rely upon the mere representation that one of the defendants had a meritorious cause of action against him upon which he was about to institute suit, and that the facts stated are not suflicient because the particular acts and statements made to the plaintiff are not set out. Whether the alleged representations were such as the plaintiff had a right to rely upon, or whether they were of a character reasonably calculated to deceive such a person as he was, were questions of fact for the jury. Representations might be futile and harmless when addressed to an active, sagacious, well-informed man, and yet the same scheme might utterly undo a weak-minded, illiterate, old, or inexperienced man. "The design of the law is to protect the weak and credulous from the wiles and stratagems of the artful and cunning, as well as those whose vigilance and sagacity enable them to protect themselves." McKee v. State, 111 Ind. 378-381, 12 N. E. Rep. 510. The law is not blind to the fact that communities are composed of individuals of varied degrees of intelligence and capacity, nor does it declare as matter of law what representations as to existing facts may or may not be relied upon. The averment that the defendants represented that one of them had a good and meritorious cause of action against the plaintiff, upon which suit would be instituted if money was not paid, was, it may be conceded, general in its character. It was, how

AL Appeal from circuit court, Allen county;

T. E. Ellison and L. M. Ninde, for appel

ever, sufficient to withstand a demurrer. motion to make the complaint more specific E. O'ROURKE, Judge. would have presented a question of a different character. The reasons already given, in | lants. Randall & Vesey, for appellees. support of the ruling of the court in holding the complaint sufficient, sustain the ruling MITCHELL, C. J. Robert Work, late of 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 subexcluding 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 so doing, the appellant asserted that he had that the testator must have intended to disbeen 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 unless he was paid he would institute suit must therefore have been the result of inadagainst 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 injured, nor had he any cause of action. He knew the incapacity of the person with whom he was dealing, and the jury had abundant reason to conclude that the plaintiff below confided in the superior knowledge of the appellant and his attorney, and that he paid the money in the belief that the appellant had a cause of action against him upon which he could maintain a suit. Worley v. Moore, 77 Ind. 567. It does not lie in the appellant's mouth to say he ought to have known better, or that he should have been more diligent to ascertain his rights. There was no error. The judgment is affirmed, with costs.

It is an established rule that the chancery powers of a court cannot be invoked to reform a will by eliminating words or phrases, and supplying others, so as to make the instrument conform to what may be supposed to have been the real intention of the testator. Funk v. Davis, 103 Ind. 281, 2 N. E. Rep. 739; Judy v. Gilbert, 77 Ind. 96; Sherwood v. Sherwood, 45 Wis. 357. The reason is that an action to reform a written instrument is regarded as essentially an action for specific performance. A devisee is a mere volunteer, the making of a will being a voluntary act. There is therefore no consideration to support the action, as in actions to reform deeds or contracts. "Volunteers under wills have no equity whereon to found a suit for specific performance." Wig. Wills, 47. Extrinsic evidence may be admitted in a proper case, when the effect of it is merely to explain or make certain what the testator has written, but such evidence is never admissible to show what the testator intended to 1. A will devising "the west half of the south-write. If the testator had devised the land west quarter" of a certain section, which the tes- by some general description by which it tator never owned, will not be interpreted to con

(122 Ind. 134)

STURGIS et al. v. WORK et al.1 (Supreme Court of Indiana. Nov. 26, 1889.)

WILLS-CONSTRUCTION.

vey the west half of the north-east quarter, owned by the testator, in the same section.

2. Where a will which devises the residue of une estate to the testator's two sons is followed by a codicil which makes no new specific devises, but revokes and changes certain devises before made, and gives to all of his children equally all the residue of his estate not therein specifically devised and bequeathed, the codicil will prevail, and carry

the residue to all the children.

3. Where a will devises 150 acres off of the side of a certain tract to one devisee, and to another all the residue of the tract except the 150 acres theretofore devised, a codicil which changes the 150-acre

devise to 100 acres will not carry the extra 50 acres to the latter devisee.

1 Rehearing denied.

might have been identified, as, for example, if he had said, "all my land in a certain section, township," or "the lot purchased by me from A.," or "the tract of land occupied by B.,”—and had then added an erroneous particular description, a case would have been presented for the admission of extraneous evidence, within the rule which holds, where there is a false description, either of the devisee or of the thing devised, if the will nevertheless contains a sufficient general description of the person or thing it will take effect, notwithstanding the erroneous partic

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. Wills, 585. Extrinsic evidence is not admitted in any case with a view of reforming or adding anything to the will, but for the purpose of arriving at the real intent of the testator by identifying the person or thing generally described, and to remove the ambiguity resulting from the erroneous particular description. Daugherty v. Rogers, 119 Ind. 254, 20 N. E. Rep. 779. It is said that courts should assume in every case, whether there be a general description of the land devised or not, that the testator intended to dispose of property of which he was the owner, and that hence evidence ought to be admitted to show that a description, as contained in the will, was a mistake, so as to prevent wrong and injustice. To do this would, however, violate the fundamental principle that a will, in order that it may be regarded as the legal declaration of a man's intention which he wills to be performed after his death, must be in writing, signed and witnessed, and that the intention of the testator is always to be deduced from the words actually written in the will. That which the statute requires to be in writing cannot be supplied by oral testimony. In respect to this point there was no error in the ruling of the court.

his estate on the day of his death, thereby becoming in fact his last will and testament. We have therefore two clauses of a will, both of which took effect at the same moment, the first of which directed that the residue of the testator's real estate, not theretofore disposed of, should go to his two sons, share and share alike, while the last clause declared in language equally unequivocal that all the residue of his estate not therein specifically devised and bequeathed should go to all his children, share and share alike. While it is true that a codicil is to be so construed as not to interfere with the disposition of property made in the will, to any greater extent than is required to give full effect to the codicil, it is also true that, if any of the provisions of the codicil are repugnant to provisions contained in the will, the codicil is to be regarded as the expression of the testator's final determination upon the subject. The general position is well supported that, where the terms of the will are clear to give an estate, the words of a codicil must manifest an intent equally clear to revoke it. Hearle v. Hicks, 8 Bing. 475; Quincy v. Rogers, 9 Cush. 291. It is undoubtedly settled, too, that, where an estate is given in one clause in clear and decisive terms, the estate so given cannot be taken away or cut down by any subsequent clause that is not as clear and decisive as the one in which the estate is given. Bailey v. Sanger, 108 Ind. 264, 9 N. E. Rep. 159; Bruce v. Bissell, 119 Ind. 524– 531, ante, 4, and cases cited; Roseboom v. Roseboom, 81 N. Y. 356; Freeman v. Coit, 96 N. Y. 63.

After making various specific devises of real estate, the testator, in the instrument originally signed as his will, disposed of what might remain in the following language: "Tenth. The residue of my real estate, not heretofore disposed of, I give and devise absolutely in fee-simple to my sons, Wesley I. 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 percodicil 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 undisposed 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.guage 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

(121 Ind. 187) STATE ex rel. HOWE v. Bond. (Supreme Court of Indiana. Nov. 26, 1889.) GUARDIAN AND WARD.

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. The language used in the codicil must therefore be regarded as referring to the real estate specifically disposed of in the will. Both the will and the codicil came into operation and effect together, and together constitute the last will and testament. They cannot be read as though the will spoke as of one date and the codicil of another. Except as we have already seen, in so far as they are repugnant to each other, the codicil must vail, as being the "later and better thought" and final expression of the testator. In respect to the point here involved the court gave an erroneous construction to the will. The last clause must control the undisposed of residue.

Where a guardian's account on its face shows him indebted to his wards, but he has really charged himself therein with a sum, paid him by mistake by the administrator of the estate of the wards' father, greater than the amount of the indebtedness, action cannot be maintained on the guardian's bond as for money in his hands due the wards. pre

Appeal from circuit court, Union county; F. S. SWIFT, Judge.

Action by the state, ex rel. John P. Howe, against Levi L. Bond. Judgment for defendant. Plaintiff appeals.

Edward T. Dickee and John R. Parmelee, for appellant. Harrison, Miller & Elam, for appellee.

By the fifth clause of the will the testator devised to his daughter Sarah Ellen Hilligass 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 thie 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. 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 affirmed.

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