Dissenting Opinion.
Reinhakd, J.For the reasons hereinafter set forth, I am not able to agree with a majority of the court as to the result reached in the prevailing opinion.
The statement filed in this case as an agreement of the facts should not be treated as an agreed case.
In Henes v. Henes, 5 Ind. App. 100, 31 N. E. Rep. 832, it was decided by this court that the statute relating to agreed cases does not apply to claims against decedents’ estates. The reason for this ruling is that the filing of such claims is governed by special statute, and not by the provisions of the civil code, and, as it is beyond the power of an executor or administrator to bind the heirs, legatees, or creditors of the estate for which he *498is trustee by absolutely admitting tbe claim over tbe requirement of tbe court for additional evidence in support thereof, so it is beyond his power to bind the heirs, legatees, or creditors of the estate by his admissions in an agreed case. If that decision declares the law correctly, there is no agreed case here. It is begging the question to say that this is not, strictly speaking, a claim against an estate,' but a proceeding to construe a will.
The only order that can be made by the circuit court in this case is one of an allowance against the estate of Charity Middleton, deceased, and, to the extent of such allowance, the shares of the residuary legatees will be diminished.
Nor is it easy to perceive how the case of llenes v. Senes, supra, in any manner conflicts with the doctrine enunciated in Booth v. Cottingham, Guar., 126 Ind. 431.
In the case last cited, it is declared that if the parties treat the paper filed as an agreed case, although the same may not be such in strictness, they are bound by the theory upon which they acted.
This is, doubtless, good law when applied to ordinary civil actions, but it can have no relevancy to claims such as is involved in the present case. To say that the statute as to agreed cases does not apply to claims against decedents’ estates, but that nevertheless if an executor or administrator enter into such an agreement, and the parties treat it as such, the estate will be bound by it, is an anomaly indeed. If the parties can make an agreed case by treating it as such, they can make one whenever they desire, and claims against estates of dead persons form no exception. .
If, then, this is a claim of the character indicated, and the decision in Henes v. Henes is to stand as the law, the parties were powerless to make an agreed case, and the *499paper filed is nothing more than an agreement of what the evidence shall be. Moreover, it is true that the agreed facts in this case are not ultimate facts, but evidentiary facts, for the most part, and the will itself is not set out, but merely referred to in the agreement. If this position is correct, the agreement must be treated by this court as other evidence given in the trial court, and this rule requires us to indulge every presumption in favor of the conclusions drawn by that court upon such evidence.
Nor will it do to say that, as there were no pleadings in this case, the paper filed as an agreed statement of facts is nothing if not such, and that the entire procedure is a nullity. The paper filed as an agreed statement of the facts is not a mere cipher, although its contents may not rise to the dignity of an agreed case. The paper contains a statement of the facts relied on by the legatee, and is signed and verified by both the claimant and the executor. No reason appears why such a paper can not take the place of the succinct statement required by the statute. Elliott’s Supp., sections 385 et seq. The court doubtless had a right to treat the statement as the complaint in the case, and the fact that the executor agreed to it was but an evidence that he admitted the facts stated therein. In my judgment, the court was not concluded by this agreement, but might have required and heard additional evidence, and taken into consideration the will itself and all surrounding circumstances of the case.
The receipts incorporated in the statements of the parties are as follows:
"March 1, 1868. Received of Charity Middleton one hundred dollars, as a part of such amount as she may see fit to bequeath to me at her decease.
" Minerva Robbins . ’ ’
"August 25, 1869. Received of Charity Middleton *500thirty dollars, as a part of such amount as she may see proper to bequeath to me at her decease.
“Minerva Robbins.”
It is stated, in the agreement, that these receipts were found in the possession of Swain at the time of the death of the testatrix, and though written by Swain as her agent, and in form as suggested by him, they were taken • “with her knowledge and by her direction, and that she knew they were so taken.” This being so, it can well be seen how the court below could construe them as an expression of the decedent that the amount represented by them was to be considered as a satisfaction pro tanto of the legacy. Indeed, it is hard to see how the court could have found otherwise, when the will and all the circumstances and facts are construed together. If the receipts contained a simple acknowledgment of the payments therein represented, without stating that they were to be considered as portions of the bequest, no presumption of ademption or satisfaction would arise from them, and the general rule would be applicable, that the will itself being the last expression of the testatrix, any payments made beforehand should be cohsidered as gifts.
But it seems, from the receipts, that the payments of the sums represented by them were made with the express agreements that they were to operate as a satisfaction pro tanto of the bequest. The will itself shows, moreover, that the testatrix had another niece, to whom she also bequeathed $200, thus indicating that the intention of the testatrix was to place them both upon an equality, and there is no showing made of any advances to the other niece.
But it is said that the testatrix, after the making of the will, made statements to the effect that she intended that Minerva should have$200 out of her estate at her death. Giving these so-called admissions their full force, they *501mean no more than is implied in the language of the will itself. That instrument provided, in effect, that Minerva should have $200 out of the estate of the testatrix at the time of her death. Her oral statements to the saíne effect can add no force to the language of the will itself, and they were not inconsistent with her intention or the intention of both parties, that the amounts for which the receipts were given should- be considered in part satisfaction of the bequest. When considered in this light, there is1 no evidence whatever that the testatrix changed these amounts into gifts outside of the legacy.
We think it must be apparent that it was the intention of both the testatrix and the claimant that the latter should have $200, and not $330, of. her bounty. It is, therefore, immaterial whether the technical doctrines of ademption may be applied with all their force to the facts in this case or not. The testatrix was under no obligation to bestow any portion of her estate upon the claimant, but could dispose of the same according to her wishes. The important matter in such cases as this is to arrive at the intention of the testator. This the court below found to be in harmony with the expressions contained in the receipts, and to the effect that $200 was all she intended to leave the appellant. The court had ample evidence to base this conclusion upon, and the finding seems to be just and fair under the circumstances of the case. The construction placed upon the evidence by the court below is not inconsistent with the terms of the will, and is the only rational conclusion that can be reached, unless a forced construction is given to the alleged oral declarations 9f the testatrix.
It is insisted by counsel for appellant, and may be conceded, that as the testatrix in this case does not stand in loco parentis to the legatee, the doctrine of ademption *502does not apply. But while a legacy may be adeemed by implication, when such relationship exists, there is no rule of law that prohibits a legacy from being satisfied by advancements, by express agreement, even though the legatee be a stranger. Section'13, Am. and Eng. Encyc. of Law, p. 70 et seq.
Filed June 24, 1893.The following authorities cited by appellee’s counsel fully support the views here expressed: Richards v. Humphreys, 15 Pick. (Mass.) 133; 1 Roper on Legacies, top p. 367; 2 Am. Notes, 4 Lond. Ed.; Jaques v. Swasey, 153 Mass. 596; 1 Pom. Eq. Jur., 564 and 560, note 1; Gray v. Bailey, 42 Ind. 349.
I think it appears sufficiently, from the facts stated, that both the testatrix and the legatee in this case intended that the payments made .should operate as a satisfaction pro tanto of the legacy, and that, even if this were an agreed case, the court did not err in so construing the facts, especially as nothing was shown to indicate that the payments were changed into absolute gifts.
The judgment should be affirmed.