Brown v. Critchell

Decision Date16 June 1886
Docket Number11,413
PartiesBrown, Executor, et al. v. Critchell et al
CourtIndiana Supreme Court

Reported at: 110 Ind. 31 at 40.

From the Floyd Circuit Court.

The judgment is reversed, with costs, and the cause remanded with instructions to sustain the demurrer.

A Dowling, T. A. Hendricks, C. Baker, O. B. Hord, A. W Hendricks, A. Baker and E. Daniels, for appellants.

J. H. Stotsenburg, G. A. Bicknell, A. C. Harris, W. H. Calkins and F. H. Collier, for appellees.

Niblack, J. Howk, C.J., took no part in the decision of this cause.


Niblack, J.

In the latter part of the year 1878, Mary Ayers Critchell, with her husband, Robert S. Critchell, and John W. Moody, filed the complaint in this cause as a claim against Jesse J. Brown and Silas C. Day, executors of the last will of Mary A. Lapsley, deceased, for the recovery of a legacy of five thousand dollars alleged to be due to the said Mary Ayers Critchell and John W. Moody, in right of their mother, Catharine S. Moody, deceased, under the provisions of the will of Elias Ayers, also deceased, who was the first husband of the said Mary A. Lapsley, and of whose will she was the executrix.

At the May term, 1879, of the court below, a demurrer was sustained to the complaint, and there was a final judgment upon demurrer in favor of the defendants. That judgment was afterwards reversed by this court, and the cause was remanded for further proceedings. Critchell v. Brown, 72 Ind. 539.

Briefly stated, the complaint, as it was originally filed, averred that Elias Ayers, on the 29th day of December, 1840, executed and published his last will, by which he devised and bequeathed to his wife, Mary A. Ayers, all his estate, both real and personal, of the probable value at that time of $ 50,000, subject to certain trusts and charges, one of which was the payment to his niece, Catharine Silliman Hillyer, of the sum of $ 5,000, which payment was to be made either during the lifetime of his wife and future widow, in her discretion, or at the time of her death; that the said Elias Ayers died, on the 10th day of January, 1842, leaving his will so executed and published in full force; that said will was duly probated, and that the said Mary A. Ayers, afterwards Lapsley, qualified as the executrix and took upon herself the execution of said will; that the said Catharine S. Hillyer, on the 10th day of September, 1844, intermarried with one James C. Moody, and, on the 25th day of April, 1850, died intestate in the county of Floyd in this State, leaving the said Mary A. Critchell and John W. Moody, and an infant child who died a few months later, her only children surviving her; also leaving the said James C. Moody as her surviving husband; that the said Mary A. Lapsley, executrix as above stated, died at said county of Floyd on the 1st day of June, 1878, testate, without having ever paid the amount so bequeathed to the said Catharine S. Moody, or having made any provision for the payment of the same; that the said James C. Moody had, by a proper instrument in writing, assigned to the plaintiffs, Mary A. Critchell and John W. Moody, all his interest in the amount of money, so bequeathed to his late wife, which he had become entitled to receive as the surviving father of the infant child which had died as herein above stated. For further particulars as to the original complaint and as to the will of Elias Ayers, see the opinion in the case of Critchell v. Brown, supra.

After the cause was remanded to the court below, the complaint was amended by the insertion of the averments, that besides the plaintiff there was no executor, administrator, widower, or other person entitled to control or share in the chose in action herein sued upon, and that the said Catharine S. Moody, at the time of her death, was not indebted to any person, or in any manner; also, that since the commencement of this suit, that is to say, on the 10th day of October, 1879, the said James C. Moody had died intestate, leaving a widow and children as the result of a second or subsequent marriage, who were also made defendants to answer as to any interest they might claim in the matters in controversy.

Brown and Day, as the representatives of the estate left by Mrs. Lapsley, demurred to the complaint as amended: First. Because the plaintiffs had no legal capacity to sue. Second, Third and Fourth. For alleged defects of parties, severally indicated. Fifth. For want of sufficient facts to constitute a cause of action. But their demurrer was overruled.

The widow of James C. Moody, and her children, having disclaimed any interest in this suit, no further notice was taken of them in the proceedings which ensued.

Brown and Day answered in denial, and the circuit court, after hearing the evidence, made a finding for the plaintiffs, and thereupon ordered and adjudged that the said Brown and Day should pay to the plaintiffs the sum of $ 5,000 as above demanded, with interest thereon, out of the estate in their hands left by Mrs. Lapsley, as well as the costs of suit.

Brown and Day, appealing to this court, first complain that the circuit court erred in overruling their demurrer to the amended complaint, upon the grounds: First. Conceding that there might be a right of action in some person to recover the alleged legacy of $ 5,000 in right of the deceased Mrs. Moody, the facts averred showed no right of action in that respect in the appellees, and hence they were, and still are, under a legal incapacity to sue in this action. Second. That the facts averred failed to show a cause of action either in favor of the appellees, or any one else, against the estate of Mrs. Lapsley, in right of Catharine S. Moody.

The want of legal capacity to sue referred to, and allowed as a cause of demurrer by the second clause of section 339, R. S. 1881, has reference to plaintiffs under legal disabilities, and not to cases in which the facts alleged show that the plaintiff has no right to sue in a particular action. Gates v. Brattle, 1 Root 187.

It is a well settled rule of practice, that to make a complaint sufficient upon demurrer, it must present a good cause of action in favor of the plaintiff, or in favor of all the plaintiffs where there are more than one. Harris v. Harris, 61 Ind. 117; Hyatt v. Cochran, 85 Ind. 231; Holzman v. Hibben, 100 Ind. 338.

The question, therefore, as to the proper parties to this action, sought to be raised by the demurrer to the complaint, was sufficiently presented by the fifth cause of demurrer.

As to whether Catharine S. Moody became lawfully entitled to receive, at some time, a legacy of $ 5,000 under the will of Elias Ayers, and, consequently, as to whether, if she had survived Mrs. Lapsley, she might have recovered the amount of such supposed legacy out of the estate in the hands of Brown and Day, exhaustive arguments have been submitted, and we are asked to reconsider that question, for the alleged reason that, as the complaint was amended after the cause was remanded, the construction given to the will of Elias Ayers, at the former hearing, is no longer obligatory as a precedent, and is, in consequence, not now the law of this case.

But as to so much of the original complaint as involved a construction of the will in question, there has been no material, if any, amendment, and, in that respect, the cause is again before us upon at least substantially the same facts as those contained in the original complaint. Consequently, the construction we gave to the will of Elias Ayers at the former hearing continues to be, as it must to the end of this controversy, the law of this case. Dodge v. Gaylord, 53 Ind. 365; Gerber v. Friday, 87 Ind. 366; Case v. Johnson, 91 Ind. 477; Jones v. Castor, 96 Ind. 307.

No question was, however, made at the former hearing as to the right of the appellees to sue for and recover the legacy then held to have been left to Catharine S. Moody, and consequently nothing on that subject was either considered or decided at that hearing.

The question is now made that under certain provisions of the R. S. of 1843, which were in force when Catharine S. Moody died, James C. Moody, her surviving husband, became entitled, in virtue of his marital rights, to demand and to receive, for his own use, the proceeds of such legacy, to the exclusion of all other persons, and that, for that reason, no interest in the legacy descended to the children of Catharine S. Moody.

It may be of interest to note that by the common law, and the earlier statutes enacted in aid thereof, title to personal property was not acquired directly by descent, as under existing statutes of our State. The methods of obtaining title to such property, recognized by that system of jurisprudence, were: 1. By occupancy. 2. By prerogative. 3. By forfeiture. 4. By custom. 5. By succession. 6. By marriage. 7. By judgment. 8. By gift or grant. 9. By contract. 10. By bankruptcy. 11. By...

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