Duncan v. Gainey
| Decision Date | 21 December 1886 |
| Docket Number | 12,122 |
| Citation | 9 N.E. 470,108 Ind. 579 |
| Parties | Duncan, Administrator, v. Gainey et al |
| Court | Indiana Supreme Court |
From the Lawrence Circuit Court.
The judgment is reversed, at the costs of Matthew Woods and the appellee Cunningham, and the cause is remanded.
G. W Friedley and E. D. Pearson, for appellant.
M. F Dunn, G. G. Dunn and N. Crooke, for appellees.
The complaint in this case averred that one John P. Gainey was in his lifetime the owner, amongst other things, of two forty acre tracts of land in Lawrence county, and of a one hundred and sixty acre tract of land in the county of Daviess; that on the 24th day of July, 1871, the said Gainey executed and published his last will and testament, by which he devised and bequeathed his Lawrence county lands, and some personal property, to his daughter, Elizabeth Gray, and likewise devised and bequeathed the Daviess county lands and nearly all of his remaining personal property to his wife, Louisa J Gainey, charging the property so devised and bequeathed to his wife with the payment of his debts, funeral expenses and all other claims against his estate; that Gainey, the testator, died on the 8th day of September, 1871, leaving his said will, containing some bequests to other persons, in full force, the same being soon thereafter admitted to probate; that the personal estate of the decedent was insufficient to pay his debts and the charges against his estate; that letters of administration, with the will annexed, were first issued to Edmond B. Gainey who was afterwards removed; that Oliver P. Anderson succeeded the said Edmond B. Gainey in the administration of said estate, but that he had, after a time, resigned without finally settling the estate; that letters of administration upon the estate remaining unadministered, and with the will annexed, had been issued to the petitioner and plaintiff, Coleman Duncan. The prayer of the complaint was, that the Daviess county lands should be ordered and decreed to be sold for the payment of the remaining debts and unpaid charges against the decedent's estate.
The widow and other devisees and legatees under the will were made defendants, as were Matthew Woods, John Woods and Abraham K. Cunningham, who were alleged to have acquired some interest in the lands in controversy. These last named defendants answered in an elaborate series of paragraphs, to some of which demurrers were sustained, and issues were formed upon those held to be sufficient. The widow and the other devisees and legatees made no defence.
The circuit court made a special finding of the facts adjudged to have been proven at the trial: First. That the said John P. Gainey died testate at the time named in the complaint. Second. That certain property, including the real estate in question, had been devised and bequeathed by him to his widow, Louisa J. Gainey, as alleged, subject to an express direction that his debts, funeral expenses and other charges against his estate should "be paid out of the property" therein devised to his wife. Third. That the decedent left the said Louisa J. Gainey and others, naming them, as his only heirs at law, devisees and legatees; that Edmond B. Gainey was first appointed administrator with the will annexed, and that while acting as such he paid a part of the indebtedness against the decedent's estate; that he was succeeded as such administrator by Oliver P. Anderson, who sued him and his sureties on his bond and obtained a judgment for an alleged waste of the assets of the estate; that afterwards Anderson resigned, and the plaintiff, Coleman Duncan, was appointed his successor; that the plaintiff had collected the judgment recovered as above by Anderson, and had paid out the proceeds on debts against the estate; that there remained no personal property or assets of a personal character belonging to the estate; that the debts and charges against the estate still remaining unpaid amounted to the aggregate sum of $ 1,273.65; that while the said Edmond B. Gainey was acting as the administrator of the estate, that is to say, in April, 1872, he, without any order of court, sold the Daviess county lands to the defendant Matthew Woods, for the sum of $ 1,400, and caused the same to be conveyed to him by a warranty deed, executed by the said Louisa J. Gainey as the devisee and supposed owner thereof; that the said Matthew Woods subsequently conveyed one-half of said lands to the defendant Abraham K. Cunningham; that the entire sum of $ 1,400, paid by the said Matthew Woods for the lands so purchased by him, had been paid out upon, and applied in payment of, debts against the estate of the decedent; that $ 950 of said amount was, under the direction of the administrator, paid out personally by Matthew Woods on such claims, specifying the particular claims so paid by him; that the said Matthew Woods had made improvements on that part of the lands still retained by him, of the value of $ 500; that such part of said land had...
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