Donivan v. Tibbles
| Decision Date | 06 April 1922 |
| Docket Number | 11,145 |
| Citation | 135 N.E. 7,78 Ind.App. 161 |
| Parties | DONIVAN ET AL. v. TIBBLES ET AL |
| Court | Indiana Appellate Court |
From Allen Superior Court; William N. Ballou, Judge.
Action by Mary Tibbles Donivan and others against Frank E. Tibbles and wife, in which the defendants filed a cross-complaint. From the judgment rendered, the plaintiffs appeal.
Affirmed.
O. E Fuelber, John G. B. Jones, L. H. Dunten and Walter Olds, for appellants.
Barrett Hoffman & Barrett, for appellees.
This was an action for partition of real estate, brought by the appellants against the appellees, who are husband and wife. To the complaint, which was in one paragraph, the appellee Frank E. Tibbles answered in general denial. He also filed a cross-complaint, to which the appellants replied in general denial. The issues thus formed were submitted to the court for trial, which, upon the request of the appellees, made a special finding of the facts and stated its conclusions of law thereon favorable to the appellees. There was a decree for partition accordingly.
The only valid assignments of error are: (1) Error in conclusions of law; and (2) error in overruling the motion for a new trial. We shall first notice the second assigned error.
In support of said motion it is urged that the decision of the court was not supported by sufficient evidence; that the evidence wholly fails to show that the appellant Mary Tibbles Donivan was guilty of any fraud, and that therefore the decision of the court should have been in her favor.
As to the essential facts found by the court there is no dispute. These are in substance as follows: Harriet E. Tibbles died testate, and her will was duly probated in the Allen Circuit Court, on July 6, 1914. The appellant Mary Tibbles Donivan and appellee Frank E. Tibbles were named as executors of said will, and duly qualified as such. By the said will the furniture and personal effects were given to the two daughters, and bequests of money were made as follows: Frank E. Tibbles, $ 1,000; Emma F. Johnson, $ 1,500; Mary Tibbles Donivan, $ 2,000; and John W. Donivan, $ 500. All the rest and residue of the estate was devised to appellee Frank E. Tibbles and to appellants Mary Tibbles Donivan and Emma F. Johnson, share and share alike, they being the only children and heirs at law. Frank E. Tibbles was an employe of a railroad company and was necessarily absent from home a large part of the time, and Mary Tibbles Donivan took charge of the matter of administering and settling said estate, and conferred with the attorneys in reference thereto. At the time of her death said Harriet E. Tibbles was the owner of certain real estate in the city of Ft. Wayne, which all the parties interested believed, in April, 1917, to be worth $ 6,000. Sufficient money came into the hands of the executors to pay debts and costs of administration, but no funds with which to pay the said bequests. Sometime in the early part of 1917, the court notified the attorney for said estate, that a final report was due, and that the same should be made and said estate closed. Thereafter appellant Mary Tibbles Donivan had several conferences with the attorney, who prepared for her a final report in settlement of said estate. For the purpose of making such settlement the several legatees executed receipts, acknowledging the receipt of their several bequests. Under advice of said attorney the parties interested joined in the execution of a deed to their said attorney, conveying said real estate to him, with the understanding that he would at once reconvey to said heirs. The attorney made such reconveyance, and conveyed to appellant Mary Tibbles Donivan and John W. Donivan, one-half of said property; to Emma F. Johnson and Albert S. Johnson, three-tenths of said property, and to Frank E. Tibbles a one-fifth interest in said property. The court further found, "that said Mary T. Donivan at the time of said settlement and final report believed that she was profiting by said settlement, and receiving a portion greater than that provided by the will," and that she did not explain the matter to her brother, Frank E. Tibbles, at the time the final settlement of said estate was made, and at the time he signed the final report, and "that said Frank E. Tibbles was misled and deceived as to the effect of said settlement upon his interest in said estate." Many other facts, not necessary to be set forth in this opinion, are found by the court.
The appellee in his cross-complaint had alleged that said settlement and said deeds were frauds upon him, and asked that they be set aside and disregarded, and that he be given his share of said property as provided for in said will.
The appellant Mary T. Donivan, while testifying as a witness admitted that she had assumed the active management and control of said estate, as one of the executors thereof; that she said nothing to her brother about any change of their respective interests in said estate from that as fixed by the will, and that she knew that by said settlement she was getting a larger portion of said estate than that given her by the will. The appellee Frank E. Tibbles testified that he left everything concerning the settlement of the estate to his said sister; that he thought she would do it right; that she would work to his interest as well as her own; that upon discovering that the deed did not give him...
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