Bailey v. Rinker

• Court: Indiana Supreme Court
• Writing for the Court: McCABE
• Citation: Bailey v. Rinker, 146 Ind. 129, 45 N.E. 38 (Ind. 1896)
• Decision Date: 21 October 1896
• Parties: BAILEY et al. v. RINKER et al.

146 Ind. 129

45 N.E. 38

BAILEY et al.

v.RINKER et al.

Supreme Court of Indiana.

Oct. 21, 1896.

Appeal from circuit court, Morgan county; W. A. Johnson, Judge pro tem.

Action by Mattie V. Bailey and others against Jennetta A. Rinker and others to set aside an executor's sale of real estate, and for partition thereof. From a judgment in favor of defendants entered on failure of plaintiffs to plead further after demurrer to the complaint was sustained, plaintiffs appeal. Affirmed.

Oscar Matthews, for appellants. Holstein & Barrett, Chas. G. Renner, and W. R. Harrison, for appellees.

McCABE, J.

This was a suit seeking to set aside an executor's sale, and to obtain partition between the heirs and legatees of Lewis Bailey of certain lands situate in Morgan county, Ind., which are particularly described, and of which said Lewis died seised. The circuit court sustained a demurrer to the complaint by each of three of the defendants for want of sufficient facts, and the plaintiffs refusing to plead over or amend, and standing upon their complaint, the court adjudged that they take nothing by their complaint. The correctness of the ruling on such demurrers is the only question presented by the assignment of errors. After stating that said Lewis Bailey departed this life in Cowley county, Kan., testate, on the 15th day of July, 1880, where he had long resided, naming all the heirs at law he left, and their degree of relationship to the deceased, and the share each was entitled to in the land mentioned under the will which it is alleged that the deceased left, in which he directed “that, after all my just debts are paid, that all my real estate, of every kind and nature, be sold by my executor, and all of the proceeds of such sale be invested in good, interest-bearing securities or bonds, and that my wife, Keziah Bailey, and my daughter, Sarah A. Bailey, have the interest on said investment during their natural lives, the principal to remain intact. And at the death of my said wife and daughter it is my will; and I do hereby declare, that all my property, except as hereinafter or otherwise provided, shall be divided, share and share alike, between my children, and the child or children of a deceased child of mine to take the share its or their parent would have taken,”-G. L. Rinker was nominated as executor of the will. It is then alleged that the widow surviving said Lewis, Keziah Bailey, died in Cowley county, Kan., on the - day of June, 1885, and his said daughter, Sarah A. Bailey, died at the same place on the - day of -, 1892. Then it is alleged that said Rinker as such executor on November 8, 1880, filed a petition in the Morgan circuit court praying for an order to sell the above-described real estate, whereupon such proceedings were had that the said court did upon the 29th day of November, 1880, grant an order to sell said real estate at private sale; that on the 10th day of September, 1886, the said Rinker sold to the defendant Mary J. Kitchen the following part of said real estate, which is described, whereupon the said executor executed and delivered to said Kitchen a deed of conveyance, which deed is recorded in the record of deeds in the office of the recorder of Morgan county, Ind.; that on the 9th day of January, 1894, the said Rinker sold the remainder of said land to the said defendant Jennetta A. Rinker, and on the 5th day of February, 1894, reported the said sale to said court, and executed and delivered to said Rinker a deed of conveyance therefor, which deed is also recorded in the deed records in said recorder's office; that said sales to Kitchen and Rinker were void for the following reasons, to wit: That said testator at the time of his death, and a long time prior thereto, was a nonresident of the state of Indiana, and was a resident of the state of Kansas, and the petition asking for the order to sell aforesaid was an ex parte petition, and on the presentation thereof said executor procured the order to sell aforesaid without making the heirs or legatees of said Lewis Bailey, or any of them, parties to said petition, and without giving them, or either of them, any notice whatever of the filing of said petition and the pendency of said cause, and the said executor did not, prior to the time of filing of said petition and obtaining said order, nor has he at any time since, filed or caused to be filed an authenticated copy of said will and the probate thereof, together with his appointment as such executor, in the said circuit court of Morgan county, Ind., and that he did not prior to the filing of said petition, and prior to the entry of said order of sale, nor has he at any time since, procured and presented said will, or a copy and the probate thereof, to the circuit court of Morgan county, Ind., and have the same adjudged by the Morgan circuit court to be the last will and testament of said Lewis Bailey, nor did he prior thereto, nor has he at any time, caused said will and the probate thereof to be probated and recorded in the order book of said Morgan circuit court, or upon any of the records of said court. And plaintiffs further aver that said sales are void for the further reason that it is provided in said will that at the death of the said testator's wife, Keziah, and daughter, Sarah A. Bailey, all his property, both real and personal, should be divided, share and share alike, between his children, the child or children of a deceased child to take the parent's portion; that no power was conferred on the executor by the will to sell or dispose of any of said real estate after the death of the beneficiaries therein named, Keziah and Sarah A. Bailey, but that in violation of the express terms of said will said sales were made after the death of said Keziah and Sarah A. Bailey. It is also alleged that Jennetta A. Rinker mortgaged her portion of said real estate to Hiram Brown, which mortgage it is alleged has been recorded, and that the same has been assigned to the defendant Clark N. Smith. A part of the relief sought is to set aside this mortgage because, as it is claimed, the executor's sales were void. The invalidity of such sales is sought to be maintained on the ground that if they rest on the power of the foreign executor, conferred on him by the terms of the will, then the sales are void because a certified copy of the will and the foreign probate thereof had not been allowed by the Morgan circuit court as the last will of the deceased, and ordered by such court to be filed and recorded by the clerk thereof, and if such sales rest on the alleged order of the Morgan circuit court, then they are void because the heirs and legatees were not made parties to the petition to sell, and were not notified of the proceedings resulting in the order of sale.

In case of...