Ditton v. Hart

• Decision Date: 23 May 1911
• Docket Number: No. 21,746.,21,746.
• Citation: 95 N.E. 119,175 Ind. 585
• Parties: DITTON et al. v. HART.
• Court: Indiana Supreme Court

175 Ind. 585

95 N.E. 119

DITTON et al.

v.HART.

No. 21,746.

Supreme Court of Indiana.

May 23, 1911.

Appeal from Circuit Court, Warren County; J. T. Saunderson, Judge.

Action by Abigail H. Hart, as administratrix of the estate of Jane Hawkins, deceased, against Minerva H. Ditton and others, to sell certain real estate for the payment of debts. From an order authorizing the sale of the real estate, defendants appeal. Affirmed.

See, also, 93 N. E. 961.

Kumler & Gaylord and Charles M. Snyder, for appellants. Edwin P. Hammond, Wm. V. Stuart, Dan W. Simms, Allison E. Stuart, Daniel Fraser, and Will Isham, for appellee.

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, among others, as disclosed by the petition, are: That the decedent, Jane Hawkins, died on the 24th day of March, 1908, at Benton county, Ind., 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 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 thereupon assumed the discharge of the duties of the trust. The heirs of the decedent, together with the Lafayette Loan & Trust Company, and other persons 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, wherein it, upon the issues joined, 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 arising out of such sale to be used and applied to the payment of the debts and liabilities of said estate.

The petition to sell the real estate in question 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 the 2d day of April, 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 the 8th day of February, 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 & Trust Company, which was nominated in said will as the executor, were all parties to that action and appeared therein. 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 the 9th day of February, 1909, and on that day, as previously shown, letters of administration upon 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 the decedent, Jane Hawkins, left surviving her as her only heirs at law her daughters, namely, 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 the following described real estate situated in Benton county, Ind.” Here the real estate sought to be sold, and which is alleged to be liable to be made assets for the payments of debts and liabilities of said estate, is described and set out. The probable value of this real estate, exclusive of liens thereon, is alleged in the petition to be $40,000. It is further averred therein that no personal estate of the decedent has come into the possession of said administratrix, but it is alleged that the personal property of the decedent was received by the Lafayette Loan & 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 that the administratrix is unable to state the amount of such assets for which said LafayetteLoan & Trust Company is accountable to said estate; that a rule issued on petitioner's petition has been presented in this court against said company requiring it to file its account showing its doings with respect to the 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 & Trust Company to said estate, the same 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 the decedent to the said Lafayette Loan & 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 the 12th day of April, 1905, the decedent executed to the Lafayette Loan & Trust Company two bonds, one for the sum of $20,000 and the other for the sum of $2,500, payable five years after date, with interest at 5 per cent. per annum, and that she secured the payment of these bonds by executing to that company a mortgage on all of section 6 and all of section 7, except the S. E. 1/4 of said section 7, all in township 25 N., range 9 W., in Benton county, Ind.; that these bonds so secured by mortgage remain unpaid except as to the interest thereon. This mortgage was duly recorded in the recorder's office of Benton county, Ind., and the Lafayette Loan & Trust Company, the holder of said mortgage and bonds, is made a party defendant to this petition. It is averred that the defendants James H. Ditton, J. Sumner Ditton, Jane Jewell, and Abigail 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.

Three alleged errors are urged by appellants' counsel for reversal of the order: (1) The insufficiency of the petition on demurrer. (2) Sustaining demurrer of appellee to 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 of the defendants who were minors by their guardian ad litem demurred to the petition on the same ground. The Lafayette Loan & Trust Company also separately demurred to the petition for want of facts. These demurrers were each overruled and exceptions reserved. All of 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 sets up and alleges substantially the following facts: 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 the decedent she was the owner of about 5,000 acres of land situated in Benton county, Ind., 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 5 per cent. interest 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 seised. It is further alleged that the decedent left...