Brunson v. Martin

• Decision Date: 13 January 1899
• Parties: BRUNSON v. MARTIN et al.
• Court: Indiana Supreme Court

152 Ind. 111

52 N.E. 599

BRUNSON

v.MARTIN et al.

Supreme Court of Indiana.

Jan. 13, 1899.

Appeal from circuit court, Jay county; D. W. Comstock, Judge.

Action by Samuel Brunson, administrator of the estate of Margaret Stoltz, deceased, against Frederick Martin and others, executors of the will of George Stoltz, deceased. There was a judgment for defendants, and plaintiff appeals. Affirmed.

J. W. Thompson, W. H. Williamson, and S. A. D. Whipple, for appellant. S. W. Haynes, Geo. W. Hall, and J. J. La Follett, for appellees.

JORDAN, J.

Appellant, as the administrator of Margaret Stoltz, instituted this proceeding by a petition in the lower court, making the appellees Martin and Stoltz, executors of the last will and testament of George Stoltz, deceased, and certain legatees under said will, parties defendant to the action. By his petition appellant sought to secure an order of the court directing the executors of George Stoltz to pay over to him, as administrator of Margaret Stoltz, deceased, $8,000 which they had in their hands at the date of said Margaret's death. A demurrer for insufficiency of facts was sustained by the court to this petition, and a final judgment rendered thereon against appellant, from which he prosecutes this appeal.

The facts set out in the petition may be thus summarized:

Appellant is the administrator of the estate of Margaret Stoltz, who died intestate in 1896, leaving surviving her no children, but leaving as her heirs certain other numerous persons, mentioned in the petition. The appellees Frederick Martin and Daniel Stoltz are the executors of the last will of George Stoltz, who died in 1891, leaving no children, but leaving as his widow said Margaret Stoltz, and also leaving surviving him certain brothers and sisters, and other persons related to him by consanguinity. In 1889 he executed the will in controversy, and the parts thereof material to the question mooted in this case are the following:

“Item 1. I give and bequeath to my beloved wife, Margaret Stoltz, the use of all my real and personal property during her lifetime, that she may use it in any manner she knew me to use it, also for religious and charitable uses; and my executors shall assist her and attend to all her business if she shall so request. She shall use but the rents and profits of said estate, or so much thereof as she can make profitable use of. Item 2. I give and devise the farm on which we now live, containing ninety and 75/100 (90 75/100) acres, and situated in Wabash township, in Jay county, Indiana, to Louis P. Fenning and Mary A. Fenning, his wife, and her heirs, subject to the life estate of my said wife, Margaret, as set out above, and subject to the payment by said Louis P. and Mary A. Fenning to Caroline Martin (or her heirs), wife of George Martin, fifteen hundred (1,500) dollars, and to Adam Stoltz, my brother, or his heirs, fifteen hundred (1,500) dollars. Five hundred dollars shall be paid to each of them one year after the death of my said wife, or, should I survive her, one year after my death, without interest, and five hundred dollars to each of them at the end of each year, with 6 per cent. interest, until all is paid.” By item 3 the testator bequeathed to his sister certain property as therein mentioned, and by items 4, 5, 6, and 7 he devised certain other property and money to other legatees, who apparently were the relatives of his said wife, Margaret. By item 8 he gave $10 to his brother Philip Stoltz. Items 9 and 10 of the will are as follows: “Item 9. The residue of my estate, after the payment of all debts and funeral expenses, I give and bequeath to my sisters Caroline Martin and Margaret Mueller and to my brother Adam Stoltz, or their heirs. Item 10. I hereby appoint as executors of the foregoing will Frederick Martin and Daniel Stoltz, with the hope and request that they will attend to the wants of my wife while she lives, should she survive me, and be faithful in carrying out all they know to be my will, for which they shall be paid a fair recompense here and approving conscience toward God.”

Appellant's decedent, Margaret Stoltz, elected to accept the provisions made for her in her husband's will in lieu of her rights in his property under the law. This will was duly probated in August, 1891, in the Jay circuit court, and appellees Martin and Stoltz were duly qualified as executors, and took upon themselves the discharge of the duties of said trust, and at the commencement of this action were still acting in the discharge of such duties.

The petition alleges that the personal property of the testator, George Stoltz, which came into the hands of his executors, consisted in part of horses, cattle, sheep, wagons and farm implements, wheat, corn, and other cereals, of the value of $2,000, and also consisted in part of accounts, notes, bills, and choses in action, of the value of $10,000; said personal estate, as an entirety, aggregating $12,000. Personal chattels above mentioned, other than the notes, bills, and accounts, were sold by the executors at public sale, and the money arising therefrom, together with that arising out of the interest on notes, bills, and accounts, was received by the executors, and by the latter was loaned and reinvested, and by their management of the said estate in this manner there was created or arose, by way of interest, rents, and profits, or the income upon the property, between the death of the testator and the demise of his said wife, a fund amounting to $8,000, which remained unused in their hands at the date of Margaret Stoltz's death, which fund, when combined with the corpus of the personal estate, amounted to $20,000 remaining in the hands of these executors at the death of the said widow. No part of this income of $8,000, accruing as aforesaid, was paid over to the said Margaret Stoltz, or accounted for to her, by the said executors. Neither does it appear that she, at any time during her life subsequent to the death of her husband, exercised the power under his will to use any part of said income as it accrued, or made any demand or claim whatever upon said executors that they pay over to her, or account to her for, any portion thereof. Neither does it appear, from any of the facts set out in the petition, that the said Margaret contracted any debts upon the faith that the said income so accrued should be applied in payment thereof; and, for aught appearing to the contrary, she at no time exercised any power or right to receive the said money so accrued from the said executors for her use, or that she required any part thereof as necessary for her support and maintenance during her life; and, for anything appearing to the contrary, the only purpose for which appellant, as her administrator, is seeking to secure the payment of the money to him by the executors of George Stoltz is that it may be distributed through him as a medium to the numerous heirs of his decedent, none of whom are shown to be of any blood relation to the said testator. Appellant averred in his complaint that when he inventoried the property belonging to the estate of his decedent, Margaret Stoltz, he omitted from said inventory the money or fund now in controversy, for the reason that at that time he had no knowledge of the facts, but that prior to instituting this action he demanded that appellees, as executors, pay over to him the said fund or money, for which he now sues, and that they account to him, under the will of the said testator, for the amount due to the estate of his decedent, all of which, it is alleged, they refused to do.

The claim of counsel for appellant is that under the will in question Mrs. Stoltz, widow of the testator, was given an absolute life estate in all of his property, and that she was entitled to all of the rents, profits, and income that arose out of the real and personalproperty, after the death of her husband until her death, whether she actually received it or not, and that any amount not claimed or turned over to her by said executors, prior to her death, must be paid by them to appellant as her administrator, and pass into and become a part of her estate. Upon the other hand, counsel for appellees contend that, inasmuch as Mrs. Stoltz failed in any manner to avail herself of...