Cook v. Cook
| Decision Date | 03 January 1884 |
| Docket Number | 10,249 |
| Parties | Cook v. Cook et al |
| Court | Indiana Supreme Court |
From the Hancock Circuit Court.
The judgment is affirmed, at the costs of the appellant.
D. S Gooding, M. B. Gooding and M. Marsh, for appellant.
J. A New and J. W. Jones, for appellees.
This suit was commenced by the appellees against the appellant before a justice of the peace of Hancock county.
After the filing of the complaint the justice, acting upon the written agreement of the parties, sent the cause to the Hancock Circuit Court.
There a demurrer to the complaint was sustained, and an amended complaint was filed, which averred that Joel Cook died testate, in March, 1870, seized of one hundred and twenty acres of land in said county; that by his will his estate was to be divided equally among his heirs, after his death and the death of his widow, subject to certain legacies, that said will was admitted to probate; that said estate was of the value of $ 5,000; that said testator left as his children and heirs the plaintiffs and the defendant, and nine others, fifteen in all; that the plaintiff Lorenzo Cook bought the interest in said estate of two of said nine, and the plaintiff Eli Cook bought the interest in said estate of five others of said nine; that said will provided for the payment out of said estate of several legacies, and that there were debts against said estate; that the defendant was the executor of said will; that after a proper application of the testator's personal estate, it was insufficient to pay any part of the said legacies, or any part of the costs of administration, and said executor was about to sell said real estate to pay said legacies and costs; that the plaintiffs, to prevent a sale of said real estate, paid off certain legacies which were a charge thereon, amounting to $ 950, and also paid costs of administration amounting to $ 138.75, in all $ 1,088.75, and thereby prevented such sale; that said defendant's contributive share of such payment as one of the fifteen heirs of said testator, is $ 72.60, which sum with interest from April 1st, 1881, the complaint claims as due the plaintiffs from said defendant.
A copy of the will is filed with the complaint as an exhibit, but it can not be regarded as a part of the complaint, because no reference is made in the complaint to such exhibit, and the will is not a necessary part of the complaint because the suit is not brought upon the will. The theory of the complaint is that the plaintiffs paid and had a right to pay money for the common benefit of all the heirs to save their land from sale, and that the defendant in equity ought to repay the plaintiffs his proportion.
The defendant demurred to the amended complaint:
1. For want of facts sufficient, etc.
2. For defect of parties, because two of the heirs, John F. Cook and Jane Yelton, were not made co-defendants.
The demurrer was overruled.
The defendant answered in four paragraphs:
1. The general denial.
2. That partition of said real estate was made by the Hancock Circuit Court, at its spring term, 1881, and defendant's share was set off to him in severalty, and all of the payments mentioned in the complaint were made after said partition, and were voluntary payments made against the defendant's objection and protest.
3. That said legacies were not liens on the land, because they had not been filed as claims against the estate when they were paid, and that the testator's personal estate was sufficient to pay all the indebtedness of said estate, except said legacies.
4. That said estate has been finally settled and the administrator discharged, and that said testator left personal estate sufficient to pay off said legacies.
The plaintiffs demurred to each of said second, third and fourth paragraphs of answer. The court sustained the demurrers to said second and third paragraphs of the answer, and overruled the demurrer to the fourth paragraph. The plaintiff replied denying the fourth paragraph. The issues were tried by the court, who found for the plaintiffs. The defendant moved for a new trial, for seven causes, of which the first three relate to rulings upon the pleadings, and are not proper in a motion for a new trial.
The fourth cause is admitting in evidence the testator's will. The fifth, sixth and seventh causes are that the finding is not sustained by sufficient evidence, is contrary to the evidence, and is contrary to law.
The motion for a new trial was overruled. Judgment was rendered on the finding. The defendant appealed.
The errors assigned are:
1. Overruling the demurrer to the amended complaint.
2. Sustaining the demurrers to the second...
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