Chapell v. Shuee

• Decision Date: 05 March 1889
• Docket Number: 12,325
• Citation: 20 N.E. 417,117 Ind. 481
• Parties: Chapell et al. v. Shuee et al
• Court: Indiana Supreme Court

20 N.E. 417

117 Ind. 481

Chapell et al. v. Shuee et al

No. 12,325

Supreme Court of Indiana

March 5, 1889

From the Tippecanoe Circuit Court.

Judgment affirmed, with costs.

W. C Wilson, J. H. Adams, G. O. Behm, A. O. Behm and W. H. Bryan for appellants.

J. R Coffroth, T. A. Stuart, C. E. Lake and J. S. McMillen, for appellees.

OPINION

Olds, J.

This action was commenced by the appellees in the Tippecanoe Circuit Court. There was no demurrer addressed to the complaint, and an answer of general denial was filed. The cause was tried, resulting in a finding for the appellees. A motion for a new trial was made, for reasons stated in the motion, which was overruled and exceptions reserved by appellants. The appellants then made a motion in arrest of judgment, which was overruled, to which ruling they also excepted.

The first question presented is as to the sufficiency of the complaint. Omitting the caption the complaint is as follows: "The undersigned, William D. Shuee and Amanda A. Shuee, respectfully represent to the court that said William D. is the administrator of the estate of David Shuee, deceased, and that said William D., Amanda A. and one Josephine Chapell are the only children of said David, who died intestate; that one Susan Shuee is the widow of said David, she being his childless second wife; that subsequent to the death of said David the said Susan sold, assigned and conveyed all her interest in said estate to said William D., Amanda A. and Josephine; that subsequent to the execution of said contract said Susan recovered a judgment of rescission of said contract in the Tippecanoe Circuit Court against said William D., Amanda A. and Josephine, who were defendants therein; that said defendants have appealed from said judgment to the Supreme Court of Indiana, and that said cause is now pending therein; that said Susan claims to be, and by the decree of said court is, entitled to one-third part of said estate, less a payment thereon of fifteen hundred dollars; that the claim of said Susan is wholly disputed and denied by said administrator and the said children of said David; that with the exception of said claim of said Susan, no one is interested in the distribution of said estate except the said William D., Amanda A. and Josephine; that said administrator has collected, and has now on hands, of funds belonging to said estate the sum of $ 16,859.79, and there is still due the estate about ----- thousand dollars of notes, which are solvent and which are drawing good rates of interest; that no claims have been filed against said estate; that there are no claims against it, and that the same is clearly solvent; that said administrator and said children are desirous of making distribution of so much of said sum as may be uncontested, leaving in the hands of said administrator the full amount thereof to which Susan might be entitled upon the affirmance of said judgment.

"They further show that prior to the death of said David he caused to be conveyed to said William D. Shuee certain real estate in said county, of the value of four thousand and five hundred dollars; that at the same time the said David conveyed to said Amanda A. certain real estate in said county, of the value of four thousand and five hundred dollars; and at the same time said David conveyed to said Josephine, by way of advancement, certain real estate in said county, of the value of fifteen hundred dollars; that said Josephine disputes the value of said advancement so set forth.

"Wherefore your petitioners pray that the value of advancements so made by the said David Shuee in his lifetime may be ascertained and determined by this court, and that two-thirds of the amount of the money now in the hands of said administrator may be distributed among the said children as their interests may appear, and that the remainder thereof be left in the hands of said administrator, subject to the final determination of said cause now pending in the Supreme Court, and that said Josephine be notified of the pendency of this petition and be required to defend the same; or if the question of advancements can not be settled in this petition, then the said William D., in his own right, and the said Amanda A. pray the court to allow them to receive the sum of $ 3,500 each, to be applied upon their respective shares of said estate."

It is contended by counsel for appellants that the complaint is insufficient, for the reason that the distribution of the personal estate of an intestate is governed by the law of the country of his domicile at the time of his death, and therefore the surplus of the estate of David Shuee should be distributed according to the law of his domicile at the time of his death; that it does not appear from the complaint that the deceased had a domicile in or was an inhabitant of the State of Indiana at the time of his death; that there is no averment in the complaint as to the time or place of the death of David Shuee; that it is not averred that letters of administration were issued by the Tippecanoe Circuit Court or any other circuit court of this State, or that David Shuee died possessed of any property situate in Tippecanoe county or in the State of Indiana; that such averments are necessary both to give the court jurisdiction and as substantive facts to make out a cause of action. As we have heretofore stated, the complaint was not tested by a demurrer, and hence the question is as to whether it is sufficient to withstand a motion in arrest of judgment.

It has been repeatedly held by this court, that, the circuit court being a court of general and superior jurisdiction, its authority to proceed in the trial of a cause need not affirmatively appear in the complaint. Brownfield v. Weicht, 9 Ind. 394; Ragan v. Haynes, 10 Ind. 348; Godfrey v. Godfrey, 17 Ind. 6; Board, etc., v. Markle, 46 Ind. 96 (106); Houk v. Barthold, 73 Ind. 21; Wilcox v. Moudy, 82 Ind. 219; Brown v. Anderson, 90 Ind. 93.

In the recent case of Bass Foundry and Machine Works v Board, etc., 115 Ind. 234, 17 N.E. 593, objection was made to the complaint on the grounds that it did not show that the claim sued upon had been first presented to the board of commissioners...