Dipert v. Killingbeck, 18332

• Decision Date: 15 May 1953
• Docket Number: No. 18332,18332
• Citation: 124 Ind.App. 18,112 N.E.2d 306
• Parties: DIPERT v. KILLINGBECK et al.
• Court: Indiana Appellate Court

Page 306

112 N.E.2d 306

124 Ind.App. 18

DIPERT v. KILLINGBECK et al.

No. 18332.

Appellate Court of Indiana, in Banc.

May 15, 1953.

James P. Gleason, Michigan City, for appellant.

Kreuger & Fox and Robert E. Glasscott, Michigan City, for appellees.

KELLEY, Judge.

Appellant filed a petition in one paragraph for authority to sell certain described real estate to make assets for the payment of debts and administration expenses. Upon sustained motion of certain of the appellees, appellant was required by the LaPorte Superior Court to divide said petition into separate paragraphs. Appellant thereafter filed an amended petition in three paragraphs. As her first assignment of error, appellant alleges error in the sustaining of said motion to separate. Appellant admits in her brief that such action is not reversible error. Nevertheless, for purposes of the determination of the questions on this appeal, we treat said petition as consisting of only one paragraph.

The substance of the petition is: The decedent, John Killingbeck, died intestate on January 7, 1927, the owner in fee of the real estate described in the petition, and left as his only heirs at law, Alice A. Killingbeck, his widow, and his two sons, viz.: Roy and Richard; that said widow became the administratrix of decedent's estate and, although not alleged in the petition, it is inferrible therefrom, that she continued to act in such capacity to the 15th day of January, 1947, on which date she died testate; that appellee Robert B. Killingbeck is, by the terms of her will, the sole beneficiary and executor thereof; that appellant is now the duly qualified and acting administratrix de bonis non of the estate of said John Killingbeck; that at the time of decedent's death, said real estate was encumbered by a duly recorded mortgage executed by decedent and his wife, the said Alice, in favor of appellee Citizens Bank of Michigan City, Indiana, etc., to secure their joint $500 note; that no personal property has come into the hands of either the original administratrix or the appellant; that a claim of appellee LaPorte Discount Company was reduced to judgment of $812.56 against the estate on June 27, 1930; that there is a pending claim and unpaid costs of administration. The petition does not allege that said described real estate was the only real estate owned by the decedent at the time of his death.

It is further averred that on June 6, 1938, said Bank, as mortgagee, brought action to foreclose its said mortgage; the petition does not so allege, but it was agreed by both sides in the argument, that all heirs, creditors, and interested parties, including decedent's widow, individually and as administratrix of decedent's estate, were made parties defendant to said foreclosure action; that said mortgage was duly ordered foreclosed in favor of said Bank by decree of the court rendered on January 12, 1939, in pursuance of which a Sheriff's sale was held, a Sheriff's certificate of sale was issued to said Bank, and, at the expiration of the redemption period, a Sheriff's Deed for said real estate was issued to said Bank and was duly recorded; that on July 24, 1940, said Bank conveyed said real estate to the appellee Leonard Smith, by Warranty Deed, for which he paid the Bank the amount due it on said mortgage, plus the foreclosure and conveyance expense and certain assessments.

It is further alleged that said widow of said decedent made no effort to obtain funds for the satisfaction and discharge of said mortgage nor to cause said real estate to be sold for benefit of the heirs and creditors; that she entered into 'an arrangement' with appellees Leonard Smith and said Bank whereby she would make no effort to 'refinance' said mortgage, redeem from sale, or sell the real estate to pay debts, that she would permit judgment of foreclosure, time of redemption to expire, Sheriff's deed to issue to said Bank, and the latter, upon payment to it by said Smith of the amount due it, would convey the real estate to said Smith, who was to convey said real estate to the said widow upon her repayment to him of the funds advanced by him; that about the time of said Warranty Deed to said Smith, viz.: July 24, 1940, the latter entered into a written contract with said widow agreeing to convey said real estate to her upon payment to him of the funds he advanced; that under said 'arrangement' it was the intention of the said widow, said Bank, and said Smith to acquire the title in the latter's name for the beneficial interest of the said widow, deprive the heirs and creditors of any benefit therefrom, and to prevent the sale of said real estate for the purpose of making assets; that 'by virtue of the foregoing facts' the interest of said Leonard Smith 'amounts to no more than a mortgage lien' on said real estate. Prayer was for determination of rights of the parties, order of sale of the real estate, and other specified and general relief.

To said petition, certain of the appellees, including decedent's said son, Roy, said Robert Killingbeck, individually and as executor of the will of said decedent's widow, and said Bank, addressed a demurrer for want of facts sufficient to constitute a cause of action, which demurrer was sustained by the court. Appellant refused to plead further and judgment was rendered against her and that she take nothing by the proceeding, and that said appellees recover their costs. From this judgment appellant appeals and assigns as error the ruling of the court in sustaining said demurrer. (The reference to 'appellant' in this opinion shall be taken to mean appellant in her fiduciary capacity unless otherwise noted.)

Under the said allegations of the appellant's petition, the real estate, upon the death of the decedent, descended to his heirs, viz: his widow Alice A. Killingbeck, and his two sons, Roy and Richard, subject to the...