Bowman v. Olrick

• Decision Date: 15 November 1905
• Docket Number: 20,600
• Citation: Bowman v. Olrick, 165 Ind. 478, 75 N.E. 820 (Ind. 1905)
• Parties: Bowman, Administrator, v. Olrick et al
• Court: Indiana Supreme Court

75 N.E. 820

165 Ind. 478

Bowman, Administrator, v. Olrick et al

No. 20,600

Supreme Court of Indiana

November 15, 1905

From Lake Circuit Court; Willis C. McMahan, Judge.

Proceeding by Fred Bowman as administrator with the will annexed of the estate of William Hoofhouse, deceased, against Jennie Olrick and others. From a decree for defendants, plaintiff appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Affirmed.

Herbert S. Barr, for appellant.

Otto J Bruce and Milo M. Bruce, for appellees.

Montgomery J. Gillett, J., did not participate in this decision.

OPINION

Montgomery, J.

Appellant, as administrator with the will annexed of the estate of William Hoofhouse, deceased, filed his petition to obtain an order for the sale of real estate to make assets, for the payment of expenses of administration, legacies, and a statutory claim of $ 500 prosecuted by the administrator of the decedent's widow. Appellee Jennie Olrick filed a cross-complaint, praying that her title to said real estate as the devisee of William Hoofhouse be quieted. The cause was tried upon the issues joined, upon the petition and said appellee's cross-complaint. At the request of the parties the court made a special finding of facts, upon which conclusions of law were stated.

The question involved is presented by the assignment that the court erred in its first conclusion of law.

The material facts found were: William Hoofhouse died testate, at Lake county, August 4, 1888, the owner in fee of the southwest quarter of the southwest quarter of section thirteen, township thirty-three, range nine, and also of an undivided one-half of lot number one, in section nine, township thirty-two, range seven, in said county. His last will was as follows: "Eagle Creek, Lake county, Indiana. August 4, 1888. This is to certify that I, William Hoofhouse, do make my last will and testament in which Effie Hoofhouse (my wife) is to have our homestead, containing forty acres, with rents and profits therefrom, including the present year 1888, during her lifetime, after which time such estate will go to my daughter Jennie J. Alreack, or her children; but if said daughter or her children should not live to inherit said estate, then it is to be divided equally between my wife's children, Fred Bowman and Ida (Bowman) Ross, or their heirs. Also if said daughter of [or] her children should live to inherit said estate, then said daughter or children shall pay Fred Bowman and Ida Ross $ 150 in cash, each or their heirs.

William X Hoofhouse, his mark."

Witnesses: W. W. Temple,

John Black, Jerome Temple.

On August 7, 1888, said will was duly probated and recorded. At the time of his death, and for more than ten years prior thereto, the decedent occupied said forty-acre tract of land in section thirteen as a homestead. His widow never made nor filed any election to take under the provisions of said will. At the time of his death said decedent owned no property other than said tracts of land, and his surviving heirs were his widow, Effie Hoofhouse, and his daughter, Jennie Olrick named in said will as Jennie J. Alreack. On March 3, 1902, said widow executed a warranty deed conveying her interest in said lot number one to Benjamin Gifford for $ 80, and on May 26, 1902, said Jennie Olrick executed a warranty deed conveying her interest in said lot to said Gifford for the sum of $ 80, and $ 160 was the fair cash value of an undivided one-half of said lot from the time of decedent's death to the date of said conveyances. On February 25, 1903, appellant was appointed and qualified as administrator, with the will annexed, of the estate of said decedent. No personal property of said decedent has come into his hands. At the time of the commencement of this proceeding neither of the legacies provided for in said will had been paid, nor had the statutory allowance, nor any part thereof, been paid to the widow of said decedent, or to any one else for her, either in property or money, and there was no personal estate out of which the same might be collected. On the 27th day of April, 1903, after the commencement of this proceeding, appellees in open court paid into the estate of said decedent $ 300 for the use of the legatees named in said will. On March 6, 1903, said Effie Hoofhouse died, intestate, and on March 19, 1903, Oliver B. Ross was appointed and qualified as administrator of her estate, and as such on March 31, 1903, filed a claim of $ 500, being the widow's statutory allowance, against the estate of the decedent, William Hoofhouse, which was allowed by appellant and remains unpaid. The decedent, William Hoofhouse, left no debts other than the claim of his widow for $ 500, and said legacies of $ 300. Said widow never made any written election to take either under the will or the law, but, as such widow, remained in possession of the whole of said forty-acre tract of land continuously from the date of her husband's death until her death, and each year during said period collected and received the rents and profits arising therefrom, including that part of the year remaining after the death of said decedent. On the 1st day of February, 1904, the cross-complainant, Jennie Olrick, executed and filed her bond in the sum of $ 100, payable to the administrator of the estate of William Hoofhouse, conditioned to pay all liabilities, eventually...