Davis v. Hoover

• Court: Indiana Supreme Court
• Writing for the Court: Niblack, J.
• Citation: Davis v. Hoover, 112 Ind. 423, 14 N. E. 468 (Ind. 1887)
• Decision Date: 02 December 1887
• Docket Number: 13,057
• Parties: Davis v. Hoover et al

14 N.E. 468

112 Ind. 423

Davis v. Hoover et al

No. 13,057

Supreme Court of Indiana

December 2, 1887

From the Madison Circuit Court.

The judgment is affirmed, with costs.

H. D Thompson, for appellant.

M. S Robinson and J. W. Lovett, for appellees.

OPINION

Niblack, J.

On the 11th day of June, 1867, Mary Davis, the appellant here, was the wife of Isaac Vanduyne, late of the county of Madison, in this State, who was, at the time, the owner of certain lots, hereinafter described, in the town of Alexandria, in that county. On that day Vanduyne executed and published his last will and testament, the disposing part of which is as follows:

"Item 1. I give and devise to my beloved wife, Mary Vanduyne, for her natural life, all the rents and profits of the house and lots, and all the appurtenances belonging to the property, where I now live, viz.: lots Nos. 7 and 8 in block No. 10 in the town of Alexandria, Madison county, State of Indiana.

"Item 2. I also give my said wife the interest during her natural life of the following moneys, viz.: $ 300--$ 100 of which is at the date hereof loaned to Conrad Coon; the other $ 200 to Joseph Pugh; and I further bequeath unto my said wife, for the term of her natural life, the interest and profits of all other moneys or choses in action of which I may be possessed at my death.

"Item 3. I also give and bequeath to my children who may survive my wife all the above described property, to be equally divided between them at the death of my said wife.

"Item 4. I give and bequeath unto my wife all my household furniture and other property of which I may be possessed, not otherwise provided for, to have and to hold forever. It is my will that my said wife shall pay out of the moneys above mentioned all debts that may be outstanding against me at my death. It is also my will that the above described real estate be appraised and sold at private sale, the proceeds thereof loaned out, secured by mortgage on real estate, and the interest, after deducting necessary expenses, given to my wife as her own property, in accordance with item No. 1 of this will."

Vanduyne, the testator, died in September, 1867, leaving this will in full force, and without naming an executor.

On the 3d day of October, 1867, one Cyrenius Free caused the will to be duly proven and admitted to probate in the common pleas court of Madison county, and afterwards procured letters of administration with the will annexed to be issued to him. On the 2d day of October, 1868, Free, as such administrator with the will annexed, but without any order of court authorizing him to do so, sold the real estate described in the will to one Joseph P. Miller for the sum of $ 700, being at the time its full value, and on that day, by a deed of conveyance in which he described himself as "executor of the last will and testament of Isaac Vanduyne, deceased," conveyed the said real estate to Miller, such deed, on its face, purporting to be made by virtue of, and in accordance with, said last will and testament, and being properly acknowledged and recorded. Miller paid the purchase-money and went into immediate possession. On the 16th day of August, 1883, Mary Hoover, the appellee, for a valuable consideration, purchased the real estate in question from a remote purchaser from Miller, and received a deed which, through intermediate conveyances, conferred upon her all the title acquired by Miller under his deed from Free, and with her husband, Valentine Hoover, in good faith, went into possession, which she still holds.

For several years after the real estate was sold and conveyed by Free to Miller, and up to the year 1882, the widow of Vanduyne, the testator, received from time to time from Free various sums of money on account of such real estate, ranging from $ 47 to $ 60 per year. Free died in the year 1882, after making the last payment to the widow. Mary Davis, the widow, having for some time thereafter received nothing further on account of such real estate, and claiming that she was, at her option, entitled to demand and receive the rents and profits thereof, commenced this action against Mrs. Hoover and her husband to have the real estate declared to be chargeable, under the will, with the payment of an annual rent to her, and to obtain a decree adjudging her claim for rent to be a lien on said real estate.

Mrs. Hoover and her husband answered in several paragraphs, and filed a cross-complaint demanding that the title of the former be quieted. Issues being joined, both upon the complaint and cross-complaint, the cause was tried upon an agreed statement as to the facts upon which it rested, which was in substantial accordance with the statement here given, with the additional agreement that all the records and papers belonging to the common pleas court of Madison county, and all other court records of that county, were destroyed by fire on the 10th day of December, 1880, and that the rental value of the real estate in controversy was, and had been since August 16th, 1883, $ 75 per annum.

Upon the facts, as thus presented, the circuit court made a general finding for the appellees, and gave judgment in their favor on the complaint, and decreed that Mrs. Hoover's title be quieted upon the cross-complaint.

Questions were reserved, and are here made, upon some of the pleadings, as well as upon the sufficiency of the evidence to sustain the proceedings below; but as a proper decision of all depends upon the construction, in certain respects, which ought to be given to the will, which was read in evidence, we will consider only the question of the sufficiency of the evidence.

It is insisted that the propriety of selling the real estate described in the will rested with, or rather in the discretion of, the common pleas court of Madison county, and not with Free, and that hence the sale to Miller without an order of that court was void; that, conceding that an order of court was not necessary, the sale ought to have been held void because it was not affirmatively shown that the real estate was first appraised, as required by the will.

It was held in the case of Landers v. Stone, 45 Ind. 404, that the only practical...