Clayton v. Blough

• Decision Date: 24 January 1884
• Docket Number: 10,769
• Parties: Clayton et al., Administrators, v. Blough et al
• Court: Indiana Supreme Court

93 Ind. 85

Clayton et al., Administrators, v. Blough et al

No. 10,769

Supreme Court of Indiana

January 24, 1884

From the Hendricks Circuit Court.

S. J North and E. W. Higbee, for appellants.

H. S Biggs, I. H. Hall, W. S. Marshall and N. G. Wood, for appellees.

OPINION

Bicknell C. C.

Thomas Clayton and wife, in October, 1878, conveyed to James McLoud, the middle part of the south half, and the west end of the north half, of the northwest quarter of section No. 6, of town 34 north, of range 6 east, in Kosciusko county, Indiana.

By a mutual mistake of the parties, the foregoing description was erroneous. The lands intended to be conveyed were the following: "Commencing on the open line 118 rods west of the southeast corner of the northeast quarter of section 6, in township 34 north, of range 6 east; thence north 40 rods; thence south 89 [degrees] 40' west, 236 rods, to the section line; thence south on said line 40 rods, to the quarter post; thence north 89 [degrees] 40' east, on the open line, 236 rods, to the place of beginning; also 57 6/100 acres off the west part of the south half of north half of section 6, in township 34 north, of range 6 east, less 3 23/100 acres for right of way of the Baltimore and Ohio Railroad Company; and also the northeast quarter of the southeast quarter of section 1, in township 34 north, of range 5 east, all in Kosciusko county, Indiana." McLoud, however, took possession of the land intended to be conveyed, and died seized of it on December 29th, 1880.

He left a widow, who had been his second wife, five children and three grandchildren of the blood of his first wife, and two children by his second wife. Eight days after her husband's death, having made no transfer of her interest in said lands, the widow died intestate.

In the absence of any valid will, the land would descend from said James McLoud as follows: The two children by the second wife would inherit jointly four-twelfths from their mother and two-twelfths from their father; the five children by the first wife would inherit jointly five-twelfths from their father, and the three grandchildren would inherit jointly the remaining one-twelfth.

The appellees, the two children by the second wife, brought this suit for partition against the other children and the grandchildren, making the said Thomas Clayton and his wife co-defendants, in order to obtain a correction of the mistake in his deed aforesaid.

The complaint stated the foregoing facts, and in its first paragraph demanded correction of the mistake, and that one-half of the entire land be assigned to the plaintiffs. The second paragraph differed from the first by averring that McLoud died intestate, and by demanding that the one-third inherited by them from their mother be assigned to the plaintiffs, and that the two-twelfths inherited by them from their father remain undivided, subject to a future partition after payment of the decedent's debts.

Two of the grandchildren were minors; they appeared by guardian ad litem.

The adult defendants, except Clayton, appeared jointly by attorney.

Clayton appeared separately by attorney.

Demurrers were filed by all of the defendants to each paragraph of the complaint. These demurrers were overruled, and some of the appellees, in the first specification of their assignment of cross errors, complain of this overruling, but they waive the alleged error by failing to discuss it in their brief.

The infant defendants answered by a general denial and two special defences.

The adult defendants, except Clayton, answered by a general denial and by four special defences.

The defendant Clayton answered by a general denial.

Demurrers were filed by the plaintiffs to all of said special defences, and these demurrers were sustained, and some of the appellees, who were defendants below, in the second, third and fourth specifications of their assignment of cross errors, complain of the sustaining of said demurrers, but they waive these alleged errors by failing to discuss them in their brief.

The defendants, the children of the first wife, then filed a cross complaint against the plaintiffs and the grandchildren, praying for partition, and claiming that the cross complainants each own an undivided eighth of the land in controversy, and that the plaintiffs each own one undivided eighth thereof, and that the grandchildren own the remaining eighth. The plaintiffs answered this cross complaint by a general denial. The record does not show that the grandchildren answered this cross complaint.

At this stage of the proceedings, the defendants Thomas Clayton and Matilda Reynolds, one of the five children of the decedent, they claiming to be the administrators with the will annexed of said decedent, obtained leave of court to file in this suit, and did file, a cross complaint as such administrators, against the other parties to the suit.

This cross complaint averred that said James McLoud died seized of the land described in the original complaint, leaving a widow and children and grandchildren, as hereinbefore stated; that he owned at the time of his death no other land; that said widow survived her husband only eight days, but, in the meantime, had elected to take under her husband's will; that said decedent left a will which was duly probated, a copy of which was made a part of said cross complaint; that said cross complainants were administrators with said will annexed; that said will provided that all the real and personal property of the testator should be converted into money, and that the proceeds thereof, after payment of the testator's debts, should be divided equally among the heirs, taking into consideration advancements; that the land is worth $ 9,000; that it is an entire farm, and not divisible without injury; that the personalty of the deceased is about $ 3,363.92; and that there are claims filed and pending against said estate amounting to $ 2,537.98, exclusive of interest; that there are other claims against said estate, amounting to upwards of $ 640, besides expenses of administration and the cost of a tombstone; that, in the judgment of the cross complainants, the personal estate of the testator will be insufficient to pay his debts and the expenses of administration, by about the sum of $ 600. Wherefore said administrators pray for an order to sell all of said real estate to make assets to pay debts.

This cross complaint was sworn to by said Thomas Clayton; it contains the substantial requisites of a petition by an administrator to sell land to make assets, under R. S. 1881, section 2338; but it may be observed that where the will gives authority to an executor to sell the land, no petition is required. R. S. 1881, section 2360. The copy of the will shows that the testator devised to his wife for life forty acres of land in section 32, and forty acres of land in section 31, both in town 35 north, of range 6 east, in Elkhart county, Indiana, to have and to hold during her natural life, and that after her death it should be sold by his executors or administrators, and the proceeds divided equally among his heirs. The will then provides thus:

"The balance of my real estate, amounting to one hundred and sixty acres, situated as follows, to wit: One hundred and twenty acres in section 31, and forty acres in section 20, all in town. 34 north, of range 6 east, Elkhart county, Indiana, I desire shall be sold by my administrator or executor, and, after paying all my funeral expenses and just debts, the residue of the money received from the sale of said land shall be divided equally between my heirs then living." And then follows a proviso that in such division an account shall be taken of advancements.

The plaintiffs demurred to this cross complaint for want of facts sufficient to constitute a cause of action against them. The other parties answered said cross complaint by a general denial. The said demurrer of the plaintiffs was sustained, and the appellants, in the first specification of their assignment of errors, complain of this ruling.

The land devised by the will is all in Elkhart county. The land of which the testator died seized is all in Kosciusko county. It does not correspond in any respect to the land devised. If, as suggested in the course of the proceedings, the testator, at the date of his will, in May, 1877, owned the land in Elkhart county, and afterwards, in October, 1878, exchanged that land for the land in Kosciusko county, of which he died seized, such an exchange amounted to a revocation of the will, and the Kosciusko lands were not affected by the will. Bowen v. Johnson, 6 Ind. 110.

If the testator intended to describe in his will the land in controversy, and by mistake devised the land in Elkhart county, no such case is shown by the cross complaint. It does not aver any mistake or any intention to devise the lands in Kosciusko county, and any such averments would have been unavailing. So far as any allegation in the cross complaint is concerned, the testator left his lands in Kosciusko county undisposed of by the will. Besides, the statute prescribes a special mode whereby lands of a decedent may be sold by executors or administrators to make assets to pay debts. There is no other mode, and there is no authority under which executors or administrators, not sued as such, can come into any other suit and file a cross complaint for such a purpose. This suit had no connection with the rights of the administrators to make assets, and the determination of it could not in any way affect such rights. There was therefore, no error in sustaining the plaintiff's demurrer to said cross complaint. After the demurrer to the said cross complaint was sustained, Rebecca Clayton, wife of Thomas...