Stonecipher v. Watson

Zollars, J. Action by appellant upon a promissory note. J udgment for appellees. The material and controlling question in the case is presented by the reply to the fourth paragraph of answer. The fourth paragraph of answer, which is, really, a cross complaint, is, in substance, that one Reed, the father of appellant and the wife of the defendant Henry Watson, died testate in I860, the owner of a large amount of property, and by his will left to appellant and Mrs. Watson, and two other heirs, but a nominal sum; that after the death of said Reed, appellant, appellee Henry Watson, and the two other heirs, employed an attorney, and agreed to pay him $600 to contfest and set aside the will of Reed; that the attorney performed the services, procured the will to be set aside, and appellant inherited $2,500 of her father’s estate; that after the attorney, had procured the will to be set aside, as per agreement, and appellant had thus been put in the pos 18 session of her estate, she refused to pay her share of the-attorney fees, and appellee Watson was compelled to pay the same in 1868, viz., $150; since which time appellant has refused to repay the same, or any portion of it to him. This amount, with interest, is pleaded as a set-off to any amount due upon the note to appellant, upon which note appellee Henry Watson is principal. The reply to this cross complaint is, that at the date of the contract with the attorney,, appellant was a married woman, living with her husband, and so continued to live with him until after the litigation in which the attorney was engaged was determined and disposed of. It will be observed that the contract with the attorney and the payment by appellee were prior to the enactment of the married women’s acts of 1879 and 1881. ' The case must, therefore, be decided without reference to these acts. Was appellant, as a married woman, liable on her contract to the attorney ? If not, no liability was created in favor of appellee Watson by his payment to the attorney, as above stated. Filed Dec. 13, 1883. This question is answered in the negative by the later decisions of this court. It would not be profitable to extend this opinion beyond a citation of some of the cases. Lacey v. Willson, 83 Ind. 570; Williams v. Wilbur, 67 Ind. 42; Pierce v. Osman, 79 Ind. 259, and cases cited. It results from this holding that the court below erred in sustaining appellees’ demurrer to appellant’s reply to the fourth paragraph of answer so-called and cross'complaint, and that the judgment must, for that reason, be reversed. Judgment reversed, with costs, and cause remanded with instructions to the trial court to overrule the demurrer to said reply.