
    LOAN CHARGED AGAINST DEVISE.
    Circuit Court of Madison County.
    J. W. Goodson, Executor, v. Thomas Goodson.
    Decided, March 29, 1909.
    
      Parent and Child — Devise of Real Estate — Loan to Son Charged Against Devise — Contract Written in Third Person — Construction of Receipt.
    
    Where- a father, after executing a will containing provision for all his children, furnishes to one son a sum of money, under the receipt following: “Received of G nine hundred dollars ($900) to be taken out of his estate, (signed) T. G.”
    
      Held: That after the father’s death the amount furnished was properly chargeable against the devise to the son.
    
      A. T. Cordray and McCloud & Lincoln, for plaintiff.
    
      George W. Wilson; contra.
   By the Court

(Dustin, Sullivan and Allread, JJ.).

This action was brought in the court of common pleas by the plaintiff in error to recover of defendant the amount of an alleged loan and to charge the amount against a devise of real estate.

A demurrer was sustained to the petition and final judgment rendered. The case is brought here by petition in error.

The petition in the court below sets forth that plaintiff’s decedent, George Goodson, devised certain real estate after the death of his wife to his son Thomas (the defendant), and certain other real estate to his son John; that the personalty was devised to the testator’s daughters, and that after the execution of the will the testator loaned to Thomas, who was then insolvent, $900 under agreement -that Thomas was to repay it out of any portion of the father’s estate the son might receive, and that said loan was evidenced by the following receipt:

“London, Ohio, April 13th, 1900.
'“Received of George Goodson nine hundred dollars (900) to be taken out of his estate.
“Thomas Goodson.”

We think the rights of the parties may be determined by a construction of this instrument in the light of surrounding circumstances.

The signing of the receipt by Thomas, and its preservation by the father by fair inference sustains the view that he (Thomas) was in some way to be charged with .the amount. This inference is supported and strengthened by the clause.“to be taken out of his estate.” The clause alludes to a future event or occasion. It.can not, fairly, be held to refer to the delivery of the money to Thomas, or the taking of it out .of the father’s hands. That had already been done and no obligation or receipt of Thomas was necessary to accomplish that object. The terms contemplated a future adjustment or settlement of the amount receipted for. The term ‘ ‘ estate ’ ’ is often used with reference to one’s property after death. An order, draft or cheek implies that the amount is to be charged against the drawer, although not expressed.

That Thomas was to be charged with the amount of the receipt- may be implied and read into the receipt, as is done in case of bank checks. •

There is, we think, a fair inference that Thomas was to be charged with the amount of this receipt, to be taken out of his father’s estate upon distribution, or at the-time he came into enjoyment of it and it was charged to. him (Thomas). The word “his” before estate might and does refer to Thomas, as contracts are often written in the third person, and we think the construction given by us is the most tenable.

While we think the plaintiff is not entitled to a personal judgment, yet it is appropriate that the amount be charged .in equity upon the real estate devised to Thomas.

The petition justifies this relief -and to that extent states a cause of action.

The judgment below is therefore reversed, with instructions to overrule the demurrer.  