Citizens' Loan & Trust Co. of Washington, Ind. v. Sanders
| Decision Date | 08 November 1933 |
| Docket Number | No. 14651.,14651. |
| Citation | 187 N.E. 396,99 Ind.App. 77 |
| Court | Indiana Appellate Court |
| Parties | CITIZENS' LOAN & TRUST CO. OF WASHINGTON, IND., et al. v. SANDERS et al. |
OPINION TEXT STARTS HERE
Appeal from Daviess Circuit Court; Milton S. Hastings, Judge.
In the matter of the estate of William R. Meredith, deceased. Petition by Marvin Edward Sanders and others to establish heirship and for order of distribution, to which Elizabeth Gwinnup and others, Andrew Witt Springer and others, Frances Rodarmel and others, and Hattie Meredith and others filed separate intervening petitions and were made parties defendant thereto, and to which the Citizens Loan & Trust Company of Washington, Ind., as executor of the last will and testament of William R. Meredith, deceased, filed an answer. From a judgment for petitioners, the executor and the defendants appeal.
Reversed, with instructions.Padgett & Rogers, of Washington, D. C., Turner, Seaberry & Springer, of Eastland, Tex., Allen, Hastings & Allen, of Washington, Ind., and Kessenger & Hill, of Vincennes, for appellant.
Shake & Kimmell, of Vincennes, and F. A. Seal, of Washington, Ind., for appellee.
The controversy involved in this appeal arises from proceedings, which are a part of the administration of the estate of William R. Meredith in the Daviess circuit court of Daviess county, Ind., under his last will and testament.
William R. Meredith, a resident of Daviess county, Ind., died testate on April 2, 1926, the owner of personal property and real estate. On April 6, 1926, his will was duly probated in said court, and the Citizens' Loan & Trust Company of Washington, Ind., one of the appellants herein, is the executor thereof.
The will, after providing for the payment of debts and funeral expenses, the forgiveness of any notes or other indebtedness owing or outstanding against any relatives, and a bequest of $1,000 to Bridget Coyle, provides, by item 4 thereof, as follows:
On September 7, 1931, the Sanders group (the appellees here) filed their petition, as a part of the administration proceedings, to establish their heirship as first and second cousins of Meredith, and for an order of distribution. There were four other groups of heirs, designated, according to their relationship, as the Gwinnup, Springer, Rodarmel, and Meredith groups.
After the filing of the above petition, the four last mentioned groups filed their intervening petitions alleging that they were first and second cousins of Meredith, and that the parties to the Sanders group were not and asked to be made parties defendant to the petition of the Sanders group. This was accordingly done.
To the petition the executor filed his answer in two paragraphs, the first being a general denial and the second setting up a plea in bar or former adjudication. All other groups filed general denials, and all groups, other than the Meredith group, filed a second paragraph almost identical with the answer of the executor. There were demurrers filed, by the Sanders group, to the three second paragraphs of answer. It is the ruling thereon that the appellant's claim was reversible error.
The second paragraph of answer alleged that in 1926 Gwinnup et al. filed a complaint in the Daviess circuit court, alleging that they were legatees and devisees of Meredith, and made certain parties defendant thereto, and asked partition of the real estate owned by Meredith. That in 1928, while the cause was pending in the Pike circuit court, to which court the case had been venued, Sanders et al. (the appellees here) filed their petition to be made defendants, and alleged that they were first and second cousins of Meredith, and hence legatees and devisees under his will. This petition was granted, and they were made defendants and filed their answer in two paragraphs and also filed a cross-complaint. In their second paragraph of answer they alleged that they were legatees and devisees as first and second cousins under item 4 of the will, as above set out, and were entitled to share in the real estate sought to be partitioned. The issues were closed upon the complaint of Gwinnup and the answer and cross-complaint of the Sanders group. That the trial court made special finding of facts and stated conclusions of law thereon and rendered judgment accordingly. That in the special finding of facts the trial court found that fifteen persons were related to Meredith, as his first cousins, and one hundred thirty-six persons were related to him, as his second cousins. That under such finding it was determined that the Sanders group (the appellees here) were not first or second cousins, and that they were, by the judgment of that court, adjudicated not to be legatees or devisees of Meredith under his will; that the appellees later filed a motion for a new trial, which was overruled, and an appeal taken to this court, by all of the other parties thereto. That no bond was ever filed by the Sanders group and no appeal was ever taken by them, and that this court affirmed the judgment of the Pike circuit court. That the issue tried in the Pike circuit court was the same issue sought to be determined in this action, namely, whether or not the said petitioners Sanders et al. were first and second cousins and, therefore, legatees and devisees of said Meredith, and entitled to a distributive share of that estate. That the Pike circuitcourt had jurisdiction of such matter and of the parties, and that the judgment therein was upon and covered all the issues as presented in the action herein. That the Sanders group asserted an interest in the real estate on the ground of and by virtue of being first and second cousins of Meredith, and, in rendering judgment in the pike circuit court, it was necessary to determine and adjudge that such relationship did not in fact exist. That the judgment became final and is now valid, and that the fact that said parties (the appellees here) were not first and second cousins of Meredith has been conclusively determined and adjudged by said former judgment.
Exceptions were taken to the sustaining of the demurrers following which the cause was submitted to the court for trial, and trial was had upon the issues joined. The court found for the Sanders group, and that they were first and second cousins of Meredith, and hence legatees under his will, and upon such finding the court rendered judgment that three of this Sanders group were first cousins and the remainder were second cousins and, therefore, legatees and entitled to participate in the distribution of the personal property of the deceased. Following a motion for new trial, which was overruled, this appeal was perfected, assigning as error that the court erred in sustaining the demurrer of the Sanders group to the second paragraph of answer filed by the executor, by the Gwinnup and...
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