Halstead v. Coen

• Decision Date: 18 June 1903
• Docket Number: 4,460
• Citation: Halstead v. Coen, 31 Ind. App. 302, 67 N. E. 957 (Ind. App. 1903)
• Parties: HALSTEAD v. COEN, ADMINISTRATRIX, ET AL
• Court: Indiana Appellate Court

67 N.E. 957

31 Ind.App. 302

HALSTEAD v. COEN, ADMINISTRATRIX, ET AL

No. 4,460

Court of Appeals of Indiana

June 18, 1903

From Jasper Circuit Court; J. S. Lairy, Special Judge.

Action by Clara Coen, administratrix of the estate of Madison Makeever, deceased, and others, against Everett Halstead. From a judgment for plaintiffs, defendant appeals.

Reversed.

Frank Foltz, C. G. Spitler, H. R. Kurrie, C. W. Hanley and J. J Hunt, for appellant.

E. P Honan, B. F. Ferguson and J. E. Wilson, for appellees.

OPINION

ROBINSON, C. J.

Madison Makeever died the owner of certain lands and by his will made the following provisions: "Item 1. I direct that all my real estate shall be preserved unsold until my youngest child shall arrive at the age of twenty-one years, and until the end of that period neither of my devisees hereinafter named shall have any power or authority to convey any portion of said real estate, with the privilege of partition. The fee in said land is not conveyed by this will so as to vest the title in the devisees until the youngest living devisee named herein shall have arrived at the age of twenty-one years. Item 2. I further direct that when the youngest legatee hereinafter named shall arrive at the age of twenty-one years the real estate owned by me at the time of my death shall be partitioned as follows: Two-thirds in value shall pass in fee to my children hereinafter named in item three of said will and their descendants. Each of said children in person or by their children shall share and share alike in such division of the two-thirds of such real estate. The one-third in value of such real estate as I may own at my death, when the youngest legatee named in this will shall have arrived at the age of twenty-one years, shall vest in my wife, Clara Makeever, during her natural life, and at her death the same shall be partitioned in the same manner as provided for the two-thirds aforesaid. Item 3. The rents and profits of the real estate derived in items one and two of this will shall be collected and divided by my executor hereinafter named as follows: Each year from the time of my death until the youngest living devisee named herein shall have arrived at the age of twenty-one years. Said executor shall pay to my wife, Clara Makeever, two-fifths thereof and the remaining three-fifths to be divided equally between my following named children," etc. The remaining part of the will contains certain bequests of personalty, gives directions to the executor as to the disposition to be made of the personal property, and authorizes him "to take possession and rent the real estate of which I may die possessed."

Clara Coen, as administratrix with the will annexed, leased the lands of which the testator died seized to appellant, who entered into possession. The lease provided, among other things, that the lessee would not cut, injure, or remove, nor permit to be cut, injured, or removed, any tree, timber, or wood whatever, existing on the leased land, without the written order of the lessor, and that he would protect the same from trespass, and as far as within his knowledge inform the lessor immediately of all such acts. Appellant having cut, as alleged, and appropriated to his own use a quantity of the growing timber consisting of cordwood, posts and sawlogs, this suit was brought by Clara Coen, administratrix, the children of the testator, and Clara Coen as a devisee under the will, for damages, and for an injunction to restrain appellant, whom it is averred is insolvent, from further cutting and selling the timber. The amended complaint is in one paragraph. Copies of the lease and of the will of Madison Makeever are filed with and made part of the complaint.

Under the rule that the law will construe the terms of a will as creating a vested estate, if possible (Amos v. Amos, 117 Ind. 37, 19 N.E. 543; Davidson v. Bates, 111 Ind. 391, 12 N.E. 687; Davidson v. Koehler, 76 Ind. 398; Harris v. Carpenter, 109 Ind. 540, 10 N.E. 422; Heilman v. Heilman, 129 Ind. 59, 28 N.E. 310), the will in question vests the fee in the lands in the children subject to a life estate in one-third in the widow. While the testator does say that the fee is not conveyed by the will so as to vest the title in the devisees until the youngest living devisee is twenty-one years of age, yet, from the whole instrument, it was manifestly the intention of the testator to prevent the disposition or partition of the lands until the time mentioned. Until that time, he expressly provided the manner in which the rents and profits should be paid to the devisees named in the will. Evidently it was his intention to have the land kept in one body until that time, and the limiting words used should be construed as a restraint upon its alienation or partition until the youngest living devisee reached the age of twenty-one years.

The action is brought by Clara Coen as a devisee under the will, by Clara Coen as administratrix with the will annexed, and the children of the testator as devisees under the will. It is first argued that the demurrer to the complaint should have been sustained because the pleading does not state a cause of action either in Clara Coen in her individual capacity or in her as administratrix. It is well settled that, under a demurrer stating for cause the want of sufficient facts, a party may take advantage of want of sufficient facts as to any one of the plaintiffs. To withstand a demurrer the complaint must state a good cause of action in favor of all the plaintiffs who have joined in bringing the action. Brown v. Critchell, 110 Ind. 31, 7 N.E. 888; Hyatt v. Cochran, 85 Ind. 231; Holzman v. Hibben, 100 Ind. 338; Berkshire v. Shultz, 25 Ind. 523; Louisville, etc., R. Co. v. Lohges, 6 Ind.App. 288, 33 N.E. 449; Steinke v. Bentley, 6 Ind.App. 663, 34 N.E. 97.

The will vested a naked power in the executor, not coupled with an interest. The executor, the administrator with the will annexed, was given possession of the land for a time, with power to rent, and collect the rents and profits, and distribute the same in a certain manner. Ordinarily an administrator has no rights, as such, in the land of his decedent, who has left heirs or...