Bowman v. Olrick

• Decision Date: 15 November 1905
• Docket Number: No. 20,600.,20,600.
• Citation: Bowman v. Olrick, 165 Ind. 478, 75 N.E. 820 (Ind. 1905)
• Parties: BOWMAN v. OLRICK et al.
• Court: Indiana Supreme Court

165 Ind. 478

75 N.E. 820

BOWMAN

v.OLRICK et al.

No. 20,600.

Supreme Court of Indiana.

Nov. 15, 1905.

Appeal from Circuit Court, Lake County; W. C. McMahan, Judge.

Action by Fred Bowman, as administrator with the will annexed of the estate of William Hoofhouse, deceased, to obtain an order for the sale of real estate, in which Jennie Olrick filed a cross-complaint to quiet title. From a judgment for cross-complainant, plaintiff appealed to the Appellate Court, from whence the cause was transferred to this court under Burns' Ann. St. 1901, § 1337u. Affirmed.

H. S. Barr, for appellant. Bruce & Bruce, for appellee.

MONTGOMERY, J.

Appellant, as administrator with the will annexed of the estate of William Hoofhouse, deceased, brought this action 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 decadent'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 appellant's petition and 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: That William Hoofhouse died testate, at Lake county, August 4, 1888, the owner in fee of the S. W. 1/4 of the S. W. 1/4 of section 13, township 33, range 9, and also an undivided one-half of lot No. 1, in section 9, township 32, range 7, in said county. That his last will was as follows:

“Eagle Creek, Lake County, Indiana,

Aug. 4th, 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 (40) 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 L. 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 one hundred and fifty dollars ($150) in cash, each or their heirs. “William his X mark Hoofhouse.

“Witnesses: W. W. Temple. John Black. Jerome Temple.”

That on August 7, 1888, said will was duly probated and recorded. That at the time of his death, and for more than 10 years prior thereto, the decedent occupied said 40-acre tract of land in section 13 as a homestead. That his widow never made or filed any election to take under the provisions of said will. That 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 L. Alreack. That on March 3, 1902, said widow executed a warranty deed conveying her interest in said lot No. 1 to Benj. Gifford for the sum of $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. That $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. That on February 25, 1903, appellant was appointed and qualified as administrator of the estate of said decedent, with the will annexed; that no personal property of said decedent has come into his hands. That 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, or any part thereof, been paid to the widow of said decedent, or to any one else for her, either in property or money, and that there was no personal estate out of which the same might be collected. That on the 27th day of April, 1903, after the commencement of this proceeding, appellee in open court paid into the estate of said decedent $300 for the use of the legatees named in said will. That 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. That the decedent, William Hoofhouse, left no debts, other than the claim of his widow for $500 and said legacies of $300. That 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 40-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...