Schnell v. Nell

17 Ind. 29 (1861)

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Nature of the Case

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Facts

Theresa Schnell died but had no property in her estate because all the property held jointly by her and her husband reverted to her husband on her death. Her husband, Zacharias Schnell (D) agreed to give each of the beneficiaries in Theresa's will $200 by an agreement entered into on February 13, 1856. A contract was executed for that purpose. The contract recited the husband’s motives in the fact that Theresa had been a dutiful and loving wife and had materially aided her husband in the acquisition of the property he now owned. He cited the consideration of the love and affection of his wife and furthermore the contract also recited the consideration of one cent for the promise to give three parties $200 each. The contract also recited that all the parties must also abstain from collecting any real or supposed claims upon him or his estate arising from the last will and testament of Theresa. The document was signed under seal. Nell (P) one of the parties to the instrument sued D apparently for nonpayment of the monies. The complaint contained no averment of a consideration for the instrument outside those expressed in it and did not aver that the one-cent agreed to be paid had been paid or tendered. D answered that the instrument sued on was given for no consideration whatsoever and that at the time of her death, Theresa owned no property except so far as the law gave her an interest in her husband’s property. The Court sustained a demurrer to these answers in that they contradicted the instruments sued on which had set out that the considerations upon which the agreement was executed. The issue was consideration. D appealed.