Comer v. Light
| Decision Date | 11 January 1911 |
| Docket Number | No. 21,808.,21,808. |
| Citation | 93 N.E. 660,175 Ind. 367 |
| Parties | COMER v. LIGHT et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Probate Court, Marion County; Frank B. Ross, Judge.
Proceedings for settlement of the estate of Henry Cruse. To the final report of Robert C. Light, administrator, Alfred W. Comer and Sarah J. Cruse filed exceptions. The exceptions were overruled, and on appeal of the mentioned contestants to the Appellate Court the judgment was affirmed. 92 N. E. 344. The case was transferred to the Supreme Court. Reversed, with directions.Walter L. Carey, for appellant. Johnson & Mehring and Wm. Bosson, for appellees.
This is an appeal upon exceptions to the final report of an administrator. The question for determination arises upon the construction to be given a will, and the order of distribution under it in case of an insolvent estate of a deceased beneficiary under the following facts: Henry Cruse deceased December 15, 1903, leaving a will the material portion of which is as follows: “I will and bequeath to my beloved wife, Eliza J. Cruse, all money and personal property of every description of which I may be possessed at my death, together with all my real estate situate in Hamilton county, Indiana (describing it specifically), to have and to hold and have the fall use and control of the same so long as she shall live; and at the death of my said wife all of said personal property remaining, and all of said real estate shall be sold by my executors, and five hundred dollars from the proceeds thereof paid to my grandson, Charles L. Cloe, the remainder to be divided equally between my sons and daughters,” naming them, of whom Jacob Cruse was one. Appellant on October 14, 1905, recovered a judgment against Jacob Cruse, son of Henry. On December 4, 1905, appellee McWhorter recovered a judgment against Jacob Cruse. Both of these judgments were in renewal of former judgments, and a transcript of each judgment was filed in the office of the clerk of the county in which the real estate of which Henry Cruse died seised was situate. The Comer judgment became a lien October 16, 1905, and the other judgment in December, 1905. No execution was ever issued upon either of these judgments, and no further steps taken respecting them, until after the death of Jacob Cruse, when they were filed and allowed as claims against his estate, in the form of judgments. Jacob Cruse died in Marion county November 15, 1907, intestate as to all his property, and appellee Light was appointed administrator of his estate June 8, 1908. Eliza Cruse, widow of Henry, and mother of Jacob Cruse, died in April, 1908. Jacob Cruse at his decease left a widow, appellee, herein, and three children. Upon the death of Eliza, the executors of the will of Henry Cruse, under the provisions of the will, sold the real estate of which he died seised, and from the proceeds of the sale $1,155.33 came into the hands of appellee Light as administrator of the estate of Jacob Cruse, who settled the estate as insolvent. He paid the widow the $500 statutory allowance and the expenses of administration, leaving a balance for distribution of $555.33. Appellee Sarah J. Cruse, widow of Jacob, claimed that she was entitled to an amount equal to one-third the proceeds of the sale of the real estate free of claims of creditors, and appellant Comer and McWhorter claimed that they were entitled to satisfaction of their judgment claims in full, as against the costs and expenses of administration, and all other claims except the widow's $500. Their respective contentions were denied, and the administrator was directed to prorate the fund among the creditors including Comer and McWhorter, and excluding the widow of Jacob Cruse, upon the theory that the fund was to be treated as personal property from the date of the death of Henry Cruse, and that the judgments were general claims.
In Doe v. Lanius (1852) 3 Ind. 441, 56 Am. Dec. 518, it was held that, as against the executors under a will directing sale of real estate within one year after the testator's death and division of the proceeds among named persons, the right of possession and legal title, until the sale, is in the beneficiaries.
In Rumsey v. Durham (1854) 5 Ind. 71, it was held that a will directing a sale of real estate after the termination of the life estate or marriage of the widow operated as a conversion into money, and should be treated as if the donation had been in money. The real question in that case was whether there was such a vested interest in a parent, who had died after the death of the testator, and before the death of the life tenant, as to let in the child of such parent to inherit, and the equitable rule of conversion and vesting at the date of the death of the testator was invoked in justice to such grandchild, and upon equitable considerations. This case was followed in Wilson v. Rudd (1862) 19 Ind. 101, holding that one of the named beneficiaries under the will took a vested interest in the real estate, which was subject to levy and sale. The case goes further than Doe v. Lanius warrants, as that case did not involve the question of title to the realty, except upon the fiction of such a vested interest as was superior on the question of possession to the right of the executor.A fair test of the question arises from the inquiry whether the executor during the interim before sale would be compelled to account for it, or, if liable to account, whether he would be liable to account for the rents and profits of the realty, or account for it as money. He certainly would not be liable to account as for money, because it could not be known what to account for, and he should not account for rents and profits of real estate because he has no right of possession. The Rudd Case goes further in holding that there is a vested interest in real estate; but it will be seen that in that case there was a specific devise of a share in the real estate under the fourth clause of the will, and the same thing is true as to the case of Heilman v. Heilman, 129 Ind. 59, 28 N. E. 310.
In Simonds v. Harris (1884) 92 Ind. 505, it was held under a will directing sale, after the termination of a life estate and division of the proceeds, that a share in the land was subject to attachment, which followed the proceeds after sale, following Wilson v. Rudd, but going further than the facts in the Rudd Case justify.
Ballenger v. Drook, 101 Ind. 172, was a case where the judgments against a distributee of the proceeds after sale were held to be such an interest as was subject to the lien of a judgment, and that the lien took preference in the distribution of the proceeds over the distributee and his grantee, following Simonds v. Harris, and Brumfield v. Drook, 101 Ind. 190, involving the same will, in which it was held that the title to the land before sale was not in abeyance, but in the testator's children, and this is likewise held in Indiana Co. v. Morgan (1903) 162 Ind. 331, 70 N. E. 368, and Myers v. Carney (1908) 171 Ind. 379, 86 N. E. 400.
In Koons v. Mellett (1889) 121 Ind. 585, 23 N. E. 95, 7 L. R. A. 231, it was held that a judgment was a lien upon lands which had been directed to be sold, and followed the proceeds.
The fiction of law that, under a simple direction to sell and divide the proceeds, conversion into money will be held in equity to have taken place at the date of the death of the testator, and that equity will treat that as done which is directed to be done, and it will be treated as that species of property into which it is directed to be converted, is grounded upon equitable considerations, and is interposed for the purpose of carrying out the intention of testators so far as that can be done within the rules of law, and generally for the purpose of equality, and doing equity between heirs or next of kin, where no other rights intervene; but it has never been understood that a testator can change realty to personalty, or vice versa, by the mere declaration that it shall be one or the other, and an examination of the cases will disclose that the fiction of constructive conversion is grounded upon the proposition that, in the absence of intervening interests or rights, the testator's intention, as it affects the beneficiary, shall control; but when the question is one between the beneficiary and the trustee of a mere power of sale, as to possession before sale, the right of the beneficiary is superior, or, if the rights of...
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