Smith v. Smith

Le Grand, C. J., delivered the opinion of this court. George Smith, among other things, devised as follows: “Item.—It is further my will, that my son, David, is la ⁶¹ famish to my wife, as aforesaid, the one-third of all the wheat and corn which he may raise on my farm during the lifetime of my wife, aforesaid, the same to be delivered to her in such manner as she may direct; and it is further my will, that my son, David, as aforesaid, shall also deliver to my oaid wife, from the farm, ns much hay and firewood as she may want for her own use during her natural life. “Item.—It is my will, and I hereby bequeath to my son David, my farm in Washington county, near the town of Sharpsburg, and on which- my said son David now resides, to him and his heirs forever, subject, however, to the following provisions, to wit: The one-third of the wheat and corn, hay and firewood, which is to be furnished to his mother during her life, is all the rent he is to pay for the same during that period; and at. the death of my wife, my said son David is to pay for the aforesaid farm the sum of three thousand, fiv© hundred dollars, in yearly payments of five hundred dollars, without interest, which is to be equally divided among my six children, or their legal representatives, share and share alike.” The testator died in the year 1834, and his widow in the month of June 1852. The appellants, who are the legal representatives of Nancy Smith, filed their petition in the orphans court against the appellee, charging him with having failed to account for a note of $200, and interest thereon, due from him to the said Nancy and unpaid at the time of her death; and also, that she had never received, up to the time of her death, the one-third part of the wheat and corn raised on the farm by the appellee, or any part thereof, or any satisfaction or payment of the same. It also alleges, that he had settled two accounts, and in neither of which had he charged himself with the value of the one-third of the said wheat and corn, nor with the said $200 and-interest, and praying that said accounts may be opened and re - stated, and errors therein corrected; and that he might be compelled to charge himself with the amount of wheat and corn not furnished by him to his mother, the intestate; and with the $200 and interest; and also, for further and other relief.

The orphans court disallowed so much of the prayer of the ⁶² petitioners as related to the opening of the accounts, and the wheat and corn; but allowed so much of it as applied to the $200. The appellants appealed from the order of the court; the appellee did not, and this puts out of view so much of the order of the court as has reference to the $200, there being no appeal from it. In reply to the petition of the appellants, the appellee claims to have fully satisfied all demands of his deceased mother against him. With regard to the one-third part of the wheat and corn raised on the farm, the answer of the appellee substantially states, that after the death of the father, and as a preliminary to his consenting to take said farm under the devise, situated as it was, it was agreed between him and his mother, that inasmuch as the farm needed large repairs, he should make all such repairs and pay all taxes himself, and that in consideration of these, she would not require him to pay the full third of the said wheat and corn, but in addition to the hay and firewood, she would be content with only so much of said wheat and corn, annually, as she might need for her purposes; and that with this understanding and agreement, he took possession and faithfully delivered to his mother whatever she required for the support of herself and family.

The evidence is abundant to show he much improved the place by adding to the old, and by the erection of new buildings; but there is no proof whatever to show this was done under an express agreement between him and his mother. This being the state of the case, it is wholly unimportant to inquire, whether the agreement set up in the answer of the appellee, if fully proven, would have been sufficient to exonerate him from the liability imposed by the will of his father? The only testimony which can in any sense be regarded as reflecting light upon the understanding, if any, between the mother and son, is that of