Cooper v. Hayes

• Decision Date: 04 April 1884
• Docket Number: 10,629
• Citation: 96 Ind. 386
• Parties: Cooper et al. v. Hayes
• Court: Indiana Supreme Court

96 Ind. 386

Cooper et al. v. Hayes

No. 10,629

Supreme Court of Indiana

April 4, 1884

Rehearing Date: June 25, 1884

Reported at: 96 Ind. 386 at 396.

From the Dearborn Circuit Court.

G Hoadley, E. M. Johnson, E. Colston, O. B. Liddell, H. L Cooper, J. E. McDonald, J. M. Butler and A. L. Mason, for appellants.

J. D. Haynes, J. K. Thompson and C. F. Hayes, for appellee.

OPINION

Bicknell, C. C.

Joseph Hayes died seized of real estate in Dearborn county. He devised the same to his brother Abiah Hayes in trust for his son Enoch Hayes. He left three sons, of whom Enoch, the youngest, was twelve years old when his father died. The testator devised other lands to the same trustee in trust for each of his other sons.

The following are all the provisions of the devise which are material to the present controversy:

"Item 5th. I give and devise to my said brother, Abiah Hayes, in trust for, and to hold the legal title and estate for, my third son, Enoch Hayes, all my real estate which is situated in the county of Dearborn, Indiana, both lands and lots.

"Item 6th. In the above disposition of my property, so far as enumerated, I have aimed to make my three children equal in the distribution of my estate; and, as neither of my children are of age, and neither of them married, my youngest son, Enoch, being about twelve years old, and my eldest son about eighteen years, I direct and request that, after my decease, they shall severally have the possession and the use of the lands devised to my said brother, Abiah Hayes, for the use of them severally, but have no right to sell or dispose of or incumber the same.

"And I further direct and will, that the legal title of all my real estate, so as above devised, shall remain and continue in the said Abiah Hayes, my brother, until my youngest son, Enoch Hayes, arrives at the age of twenty-one years; and, at that period (except as hereinafter directed), I direct, and it is my will, that said trust estate in the said Abiah Hayes, my brother, shall cease and come to an end, and the real estate and other property devised to him in trust for my said sons, Van Hayes, Silas P. Hayes and Enoch Hayes, shall become legally, as well as equitably, vested in them, respectively, as above specifically devised; and, on the arrival at age of said Enoch Hayes, I will that my said brother, Abiah Hayes, do convey to my said sons, Van, Silas and Enoch, respectively, the lands devised to him, as above, in trust for them respectively.

"But it is further my will, and I do hereby will and direct, that if at the time of arrival at full age of my son Enoch, my said brother, Abiah Hayes, shall have reason to fear, and shall believe that either of my sons will not take proper care of their property, or waste and squander the same, then I direct that the estate of such one, or either, or all of my sons, shall be still held in trust by my said brother until such time as, in his judgment, it is prudent and safe to convey their legal title respectively.

"It is my will, and I enjoin it upon my sons, that they retain and live upon the property I have devised for their use as long as they live, and that they each leave to their heirs the same property I have given to them unincumbered, and that they strive to increase and add to it, rather than to diminish or incumber it; and I further enjoin upon my sons so to conduct themselves as to their habits and attention to their business as to deserve the confidence of their uncle, Abiah Hayes, and entitle themselves to the legal title to the lands above devised at the earliest period consistent with my will.

"Item 7th. And I further will and direct, that, in case my brother, Abiah Hayes, shall die or become incapacitated from discharging the trusts so as above and hereinafter enjoined upon him, or in case he refuses to act and accept of said trusts, then, in that case, I will and devise to my cousin, Van Hayes, and my nephew, Isaac Hayes, the same lands and property, upon the same trusts as above enumerated, as to said Abiah Hayes, and I enjoin upon them, or the survivor of them, the same duties and trusts and responsibilities which I have provided for in the case my brother accepts of said trust, giving the same rights and enjoining upon them the same duties.

"Item 8th. It is further my will, and I hereby provide and direct, that, in case my youngest son, Enoch Hayes, shall die before he arrives at the age of twenty-one years, that the time when he would have become twenty-one years of age, if he had lived, shall be taken as the time referred to in item sixth, as to when said trust estate shall determine, subject to the conditions in item sixth.

"Item 10th. In case of the death of either of my sons without children, I devise the share of such deceased son or sons to the survivors equally, the legal estate to remain in said trustee for the benefit of the survivors, subject to the same conditions as are provided for in the case of the property devised for their use and benefit; but, in case either of my sons shall die, leaving children, I devise the same property to their children, which I have respectively devised to my said sons; meaning that the children of any of my sons who shall die shall have the same property which is devised for the use of their father.

"Item 16th. I devise, and bequeath, and direct that all the rest and residue of my property, be it real or personal, not herein disposed of, shall be equally divided among my sons, share and share alike. My horses, cattle and hogs to be divided and distributed by my executors among my sons (except as above disposed of), and the money arising from my notes and debts due to me, to be collected by my executors, and equally divided among my sons, or the survivors of them, and paid to them, or invested for their several benefits, as my executors may at the time deem most for the interest of my sons, having reference to their ages and other circumstances."

Van Hayes the oldest brother died, leaving a daughter, Mary; Silas Hayes, the second brother, died without issue, and afterwards Enoch Hayes died without issue, leaving a widow, Ann Hayes, who has since married Samuel Cooper. Enoch Hayes, by his last will, devised the lands in controversy to his said widow. Mary Hayes, the daughter of Van Hayes and granddaughter of Joseph, now brings this suit against Enoch's widow and her present husband, and the trustees named in Joseph's will and others, to recover said land in Dearborn county and damages for the detention thereof.

The complaint is in two paragraphs. The first paragraph is in the usual form, alleging the equitable title and the right to the possession to be in the plaintiff, and that the defendants unlawfully and without right now detain, and for six years last past have detained, the possession from the plaintiff, to her damage $ 7,000.

The second paragraph of the complaint sets forth the facts specially, with a copy of the will of Joseph Hayes and the letters testamentary granted thereon, and claims that under said will, when Enoch Hayes died without issue, the right to said lands devolved upon the plaintiff, and that said Enoch had no devisable interest therein, and that the trustees under said Joseph's will had never conveyed the legal title of said land to said Enoch, but had retained the same pursuant to the terms of said will, and that the defendants Cooper and wife now hold, and for six years last past have held, the possession of said lands against the plaintiff unlawfully and without right. This paragraph prays judgment for $ 7,000 damages, and for the recovery of the land, and that said trustees be ordered to convey said land to the plaintiff, and that she may have all proper relief.

In this complaint the defendants Anna Cooper and Samuel Cooper filed a demurrer in the following form: "Now at this time come Samuel Cooper and Anna Cooper, defendants, and demur to the first and second paragraphs of plaintiff's complaint, for the reason that the same, and neither one of the same, constitute a cause of action against the said defendants herein named."

This demurrer was overruled, and this overruling is assigned as error in the first, second and third specifications of the assignment of errors.

This demurrer is not in the form required by the statute; it fails to state that the pleading demurred to does not contain facts sufficient, and being a demurrer to the entire complaint, and the first paragraph being good, there was no error in overruling the demurrer. Pine Civil Tp. v. Huber, etc., Co., 83 Ind. 121, and cases there cited; Stanford v. Davis, 54 Ind. 45; Meyer v. Bohlfing, 44 Ind. 238; Silvers v. Junction R. R. Co., 43 Ind. 435; Washington Tp. v. Bonney, 45 Ind. 77.

The fourth specification of error is not mentioned in the appellants' brief, and is therefore regarded as waived.

The defendants, Isaac Hayes and Silas V. Hayes, the trustees, filed a counter-claim, alleging that they were entitled to a lien on said lands for $ 1,273.36 for the balance of an account due them as trustees, and praying for the enforcement of said lien. The plaintiff answered this counter-claim by a general denial.

The defendants Anna Cooper and Samuel B. Cooper filed an answer in two paragraphs: 1st. The general denial. 2d. A special answer admitting the material facts stated in the complaint, and alleging a former adjudication of the same matter now in controversy, by the court of common pleas of Hamilton county, Ohio, upon a petition of said trustees for a construction of the will of said Joseph Hayes, to which petition the present plaintiff and said Anna Hayes, now Anna Cooper, were defendants.

The plaintiff filed a demurrer to the said second paragraph of the answer of Cooper and wife,...