
    7528.
    Bunnell v. Bunnell
    
      'Will. — Evidence.—Extrinsic evidence is not admissible to alter, detract from or add to the terms of a will; nor is parol evidence admissible to correct a supposed mistake in a will.
    
      'Same. — Purchase of Legatee’s Interest. — Agreement.—Parol evidence of an agreement to purchase the interest of a legatee in a testator's estate does not tend to contradict or vary the terms of the will, even though such agreement involves a release from an obligation imposed by the-will upon such purchaser.
    
      Same. — Release of Legacy. — A legatee may release another from the payment of the legacy, although payment be expressly charged upon the-land devised to the person charged with its payment.
    From the Clinton Circuit Court.
    
      J. A. Stein, J. Glaybciugh and B. K. Higinbotham, for appellant.
    
      L. McClurg and J. V. Kent, for appellee.
   Elliott, J.

— Appellant was the plaintiff below. He sets out in his complaint a will executed by Noah Bunnell, deceased, the father of the parties to this action. Item 1st bequeaths to the testator’s wife the rents and profits of all his real estate ; and item 2d, all his personal property. Item 3d is the one upon which this controversy arises, and is as follows : “3d. In consideration of the advances made to my children, and the payments to be made by my son Noah Livy Bunnell, after my decease, to equalize the proceeds of my estate among all my dear children, I will and bequeath to* my youngest son, Noah Livy Bunnell, all my real estate, on condition that he will pay and satisfy my son Seneca Bunnell the sum of one thousand five hundred dollars in one year from my decease and the decease of my beloved wife ; and that my two sons, Daniel James "and Seneca, pay to my daughter, Harriet Chaney, the sum of two hundred dollars in one year.” The complaint alleges that the testator died the* owner of the lands described in item 1st; that his widow took under the will; that she died on the 27th day of July, 1876 ; that since her death Noah L. Bunnell has been the owner of said lands under said will, and in possession thereof ; that more than a year has elapsed since the death of the. said widow ; that demand has been made of said Noah L. Bunnell for the sum of $1,500, and that he wholly failed and refused to pay said sum or any part thereof.

The first question which the record presents arises upon the ruling of the court upon appellant’s demurrer to the .amended second paragraph of appellee’s answer. This paragraph admits the allegations of the complaint, but endeavors to avoid them by affirmative matter. The substantive •allegations of the paragraph under mention may be thus .summarized: At the time of the execution of the will, appellee had advanced appellant $1,500, which was paid by appellee, and received by the appellant, as an advancement upon his interest in the father’s estate; that the advancement was made pursuant to a contract previously entered into between the parties, in which appel.lee had agreed to give, and appellant to accept, $3,000 for all his right and interest in the said testator’s estate; that, at the time of the execution ■of the will, there was due from appellee upon such contract $1,500 ; that the testator knew of said contract and advancement of $1,500 by appellee, and that, for the purpose of compelling the carrying out of the said contract, incorporated in his will the provisions of item 3d. It is also averred, in ■conclusion, that the appellee paid to appellant the said sum of $1,500 ; “that it is the stun which would be due the appellant, if said contract was carried out according to the terms thereof;” and that the said payment was made since the execution of the will.

The second question presented arises upon the ruling on the demurrer to the third paragraph of appellee’s answer. 'This paragraph is very similar to the second. In two particulars it differs from it. The first point of difference is "that the third paragraph avers that the testator was a party to the contract wherein appellant sold his interest to appellee. The second point of difference is that the allegation of ■payment in the third paragraph is much more full and explicit than in the second. We quote the averment of the "third paragraph, as to payment: “Defendant further avers that, at the time of the payment of said fifteen Hundred dollars, plaintiff well knew of the existence and contents of said will; also, that defendant was paying said sum in discharge-of his obligation created by said will, and plaintiff then and there so received and accepted the same.”

Appellant contends that both of these paragraphs were-bad, and that the demurrers ought to have been sustained. It is said that they are bad because they attempt to vary the-provisions of the will by parol. The appellant is unquestionably correct in saying that extrinsic evidence is not admissible to alter, detract from, or add to, the terms of a will. It is also true that parol evidence is not admissible to correct a supposed mistake in- a will. The case of McAlister v. Butterfield, 31 Ind. 25, affords a very striking illustration of this rule.( The answers contain allegations which do-seem to trench upon the rule referred to, but, independently of these allegations, we think a defence is stated. What is. stated in the answers, as to the knowledge and intent of the. testator, may be rejected as surplusage, and a valid defencewill remain. Rejecting all such matters, we find these material facts: That appellant agreed to sell to appellee all his interest in the estate of the father for $3,000 ; that, on this contract, $1,500 was paid before the execution of the-will, and the remainder after its execution; and that the last payment was made in discharge of the obligations imposed upon appellee by the will. It thus appears that there-, was a contract, that it was fully performed by the appellee,, and that this performance was accepted by the appellant. Having accepted performance of- this contract, as the demurrer admits the appellant did, the latter is not in a situation to demand the legacy bequeathed by the will, in addition, to the $3,000 already paid to, and received by, him for his. right and interest in the estate of his father. Thé will is not affected by such a contract and its performance. The obligation imposed by the testator is, however, extinguished.

It is argued with ability and earnestness, that the answers; are bad because they set up an erroneous construction of the will. Counsel are right in affirming that an answer is bad which alleges as a defence a construction which the instrument will not bear. There are some portions of the answers under examination which deserve the censure which counsel bestow upon them, but there are also the material facts, already mentioned, directly stated, and fully admitted by the demurrers, which, in our judgment, make the answers good.

The ruling denying a new trial is assigned for error. Complaint is made of the action of the court in admitting evidence of the agreement of appellee to purchase the interest of appellant in the estate of their father. In this ruling there was no error. The evidence did not contradict, vary or alter the terms of the will. The agreement proved was altogether distinct from, and independent of, the will of Noah Bunnell. It is true, as appellant contends, that the evidence could not alter the provisions of the will, but this does not prove it to have been incompetent. It was competent, not for the purpose of varying the will, but for the purpose of showing a contract between appellant and appellee, whereby the latter acquired the interest of the former in his father’s estate and a release from the obligation imposed by the father’s will. Nor was the evidence competent for the purpose of construing the will, although there are cases where it is proper to prove the surrounding circumstances ; but it' was competent for the purpose of showing an extinguishment of the liability imposed upon the appellant by his father’s will. It was proper to prove the contract, performance and acceptance ; and, when this was satisfactorily done, the appellant was released from payment of the sum charged upon the real estate devised to him. The legatee had a right to sell, and the appellee a right to buy, the legacy; and, if the former entered into a contract fully extinguishing such legacy, his rights were gone as soon as the appellee had fully performed his part of the contract. It can not be doubted that a legatee may release another from payment of the legacy, although payment be expressly charged upon the land devised to the person charged with the payment of. the legacy.

It is vigorously insisted that the verdict is not sustained by the evidence. We have carefully read the evidence, and have found some evidence sustaining the verdict, although it is not of the most satisfactory character. The evidence is not, it is plain, very fully stated in the bill of exceptions, and we can not secure as full an appreciation of its force and effect as the court and jury who tried the cause; therefore, we deem it better to allow their conclusion to remain undisturbed.

Judgment affirmed.  