Ditton v. Hart

Decision Date23 May 1911
Docket Number21,746
Citation95 N.E. 119,175 Ind. 585
PartiesDitton et al. v. Hart, Administratrix, et al
CourtIndiana Supreme Court

From Warren Circuit Court; J. T. Saunderson, Judge.

Action by Abigail H. Hart, as administratrix of the estate of Jane Hawkins, deceased, against Minerva H. Ditton and others. From a judgment for plaintiff, defendants appeal.

Affirmed.

Kumler & Gaylord and Charles M. Snyder, for appellant.

E. P Hammond, W. V. Stuart, Dan W. Simms, Allison E. Stuart Daniel Fraser and Will Isham, for appellee administratrix.

OPINION

Jordan, C. J.

This appeal is taken from an interlocutory order of the Warren Circuit Court, authorizing, upon the petition of the administratrix of Jane Hawkins, deceased, the sale of certain lands, for the purpose of making assets for the payment of the debts and liabilities of said estate. The petition to sell was filed in the Benton Circuit Court on March 29, 1909.

The facts disclosed by the petition are that the decedent, Jane Hawkins, died on March 24, 1908, in Benton county, Indiana, and that Abigail H. Hart was, on February 9, 1909, by the clerk of the Benton Circuit Court, duly appointed administratrix of her estate, and the proper letters of administration were issued to her. This appointment was confirmed by the Benton Circuit Court on March 22, 1909. Abigail H. Hart duly qualified as such administratrix, and assumed the duties of the trust. The heirs of the decedent, together with the LaFayette Loan and Trust Company, and other parties mentioned and named in the petition, were made parties defendant. The administratrix filed an inventory and appraisement of the real estate described in the complaint, showing that these lands were of the value of $ 43,925. She also filed an additional bond as required by the statute.

The cause was venued to the Warren Circuit Court, where it was tried and determined, and the lands described in the petition of the administratrix were, on May 26, 1910, ordered by the court to be sold at public sale upon the terms and conditions prescribed and fixed in the order; the proceeds of such sale were to be applied to the payment of the debts and liabilities of said estate.

The petition to sell said real estate further alleged that said Jane Hawkins, at her death, left an instrument in writing purporting to be her last will and testament, which document was admitted to probate in the Benton Circuit Court on April 2, 1908; that an action to contest the validity of this will was commenced in the Benton Circuit Court, but subsequently was venued to the Warren Circuit Court, wherein by a judgment of said Warren Circuit Court, duly rendered on February 8, 1909, the will was set aside and declared to be null and void, and the probate thereof revoked; that in the action to contest the will, all the heirs of the decedent and all the beneficiaries under the pretended will, together with the LaFayette Loan and Trust Company, which was nominated in said will as the executor, were made parties and appeared. A duly certified copy of the judgment of the Warren Circuit Court, setting aside the will and revoking the probate thereof, was recorded in the records of wills in the office of the clerk of the Benton circuit court on February 9, 1909, and on that day, as previously shown, letters of administration on the estate of said Jane Hawkins were duly issued by the clerk of the Benton circuit court to Abigail H. Hart, who duly qualified, and has since been and is now acting as such administratrix.

The petition further alleged that decedent, Jane Hawkins, left surviving her as her only heirs at law, her daughters Abigail H. Hart, wife of George H. Hart, Elizabeth H. Bond, wife of John L. Bond, Minerva H. Ditton, wife of William V. Ditton, and Martha J. Jewell, wife of Charles W. Jewell, and her grandson James Hawkins.

It is alleged that at the time of her death said decedent was the owner, among other lands, of real estate situated in Benton county, Indiana, liable to sale to make assets for the payment of debts and liabilities of said estate. The probable value of this real estate, exclusive of liens thereon, is alleged to be $ 40,000. It is further averred that no personal estate of the decedent has come into the possession of said administratrix, but that the personal property of the decedent was received by the LaFayette Loan and Trust Company, which was made executor of the pretended will of the decedent, and that company has not yet accounted for the assets of said estate received by it, and the administratrix is unable to state the amount of such assets for which said LaFayette Loan and Trust Company is accountable to said estate; that a rule issued on plaintiff's petition has been presented in this court against said company, requiring it to file its account showing its transactions with respect to said estate, and the amounts with which it is chargeable. It is, however, averred in the petition to sell, that "whatever may be the amount of the liability of the LaFayette Loan and Trust Company to said estate, it will not be sufficient, by many thousand dollars, to pay the debts of said estate."

It is further alleged that claims have been filed and allowed against the estate amounting to $ 38,000; that there is a note for $ 4,000, executed by decedent to said LaFayette Loan and Trust Company, which has not yet been filed against the estate; that the expenses of administration will probably amount to $ 1,000, and the taxes assessed against the property of decedent for the year 1908, and which were a lien against her real estate at the time of her death, are unpaid, and amount to $ 1,115.55.

It is further averred that on April 12, 1905, the decedent executed to the LaFayette Loan and Trust Company two bonds, one for $ 20,000 and the other for $ 2,500, payable five years after date, with interest at five per cent per annum, and that she secured the payment of these bonds by executing to that company a mortgage on all of section six, and all of section seven except the southeast quarter, said sections being in township twenty-five north, range nine west, in Benton county, Indiana; that these bonds so secured by mortgage remain unpaid except as to the interest thereon. This mortgage was duly recorded in the office of the recorder of Benton county, Indiana, and the LaFayette Loan and Trust Company, the holder of said mortgage and bonds, is made a party defendant to this petition. It is averred that defendants James H. Ditton, J. Sumner Ditton, Jane Jewell and Abigail H. Jewell were beneficiaries and devisees under said pretended will, and were parties defendant in the action in which said will was set aside.

The prayer is that upon the hearing of the petition an order be granted by the court empowering the administratrix to sell the real estate specifically described, or so much thereof as may be necessary to discharge the debts and liabilities of the estate.

The following errors are urged by appellants' counsel for reversal of the order: (1) The insufficiency of the petition on demurrer; (2) sustaining demurrer of appellee administratrix to the second paragraph of appellants' answer; (3) refusal of the lower court to stay proceedings on the order.

It appears that the adult defendants, as heirs, demurred to the petition, alleging, as ground for demurrers, insufficiency of facts. Other defendants who were minors, by their guardian ad litem, demurred to the petition on the same ground. The LaFayette Loan and Trust Company also separately demurred to the petition for want of facts. These demurrers were overruled and exceptions reserved. All the defendants then separately answered the petition by an answer in two paragraphs, the first being the general denial. These answers are virtually identical. The second paragraph alleges in substance, that the land described in the petition of the administratrix is of the probable value of $ 45,000; that at the time of the death of decedent she was the owner of about five thousand acres of land situated in Benton county, Indiana, of the probable value of $ 600,000; that the rental value of this land is about $ 25,000 per annum, less the taxes to be paid thereon; that a sum sufficient to pay and satisfy all the debts of the estate can be borrowed by the administratrix at five per cent per annum for a period of from three to five years; that such a loan can be carried as a debt against the estate, and repaid out of the income of all the lands of which the decedent died seized.

It is further alleged that decedent left a will which, after her death, was probated in the Benton Circuit Court; that the defendants, other than the LaFayette Loan and Trust Company were devisees under this will; that in an action contesting the will it was, by a judgment of the Warren Circuit Court, set aside and held to be null; that defendants have appealed from this judgment to the Supreme Court of Indiana, wherein said appeal...

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