Hayward v. Hayward

• Decision Date: 26 April 1917
• Docket Number: No. 9216.,9216.
• Citation: 115 N.E. 966,65 Ind.App. 440
• Parties: HAYWARD v. HAYWARD et al.
• Court: Indiana Appellate Court

65 Ind.App. 440

115 N.E. 966

HAYWARD

v.HAYWARD et al.

No. 9216.

Appellate Court of Indiana, Division No. 2.

April 26, 1917.

Appeal from Circuit Court, Vanderburgh county; Edwin Taylor, Special Judge.

Petition by Edward J. Hayward for partial distribution of estate of Sarah M. Drew, deceased, under Burns' Ann. St. 1914, § 2902, opposed by Charles W. Hayward, administrator, and others. Demurrer to answer sustained, and judgment rendered against petitioner for refusal to plead over, and petitioner appeals. Reversed, with instructions.J. W. Blue, Jr., of Marion, and John H. Foster and Walton M. Wheeler, both of Evansville, for appellant. Cunningham & Ortmeyer, of Evansville, for appellees.

CALDWELL, J.

Sarah M. Drew died intestate in Vanderburgh county, Ind., September, 1913. By appointment of the Vanderburgh circuit court, appellee Charles W. Hayward is administrator of her estate. Under the provisions of section 2902 et seq., Burns 1914, appellant filed a petition for a partial distribution of the estate among the heirs. To the petition appellee administrator filed paragraphs of answer numbered third, fourth, and seventh, among others unimportant here. The other appellees filed like answers bearing like numbers. Appellant's demurrer addressed severally to each of said paragraphs of answer filed by the administrator was overruled. There was a like ruling on appellant's demurrers addressed severally to each of said paragraphs of answer filed by the other appellees. The paragraphs of answer other than the third, fourth, and seventh, being withdrawn, judgment was rendered against appellant for failure and refusal to plead over.

The errors assigned are based on the rulings on the demurrers. The further facts disclosed by the petition are to the following effect: The administrator has paid all the debts of the estate, and has in his possession for distribution among the heirs personal assets amounting to about $15,000. Decedent at the time of her death was 75 years of age. Prior to February 1, 1907, she had for many years been legally domiciled at Smithland in the state of Kentucky. February 1, 1907, she had become enfeebled in body and mind, and incapable of providing for her wants or of determining any question for herself. She had no relatives living in or near Smithland. Thereupon, on said day, appellees, who are nephews and nieces, and Virginia Hayward, their mother, having learned of decedent's condition, took charge of her and brought her to Evansville in Vanderburgh county for care and medical attention. Appellees shortly thereafter caused proceedings to be brought in the Vanderburgh circuit court, pursuant to which a guardian was appointed over the person and estate of decedent, and thereafter until her death appellees and the guardian had full custody and control of decedent's person and estate and kept and maintained her in Evansville, Vanderburgh county, at the expense of her own estate. Decedent at the time of her removal from Smithland to Evansville and at all times thereafter was incapable of intelligent action in her own behalf, or of forming an intention with reference to any change of residence or domicile, and she did not attempt to and did not change her legal domicile from Smithland, Ky., but that place remained her legal residence and domicile to the date of her decease. She left as her only heirs at law appellant, a son of one of her deceased brothers, and appellees, Charles W., Walter S., James T., and Ruby Hayward and Minnie L. Flickner and Adeline Heard, children of another deceased brother. The petition sets out certain statutes of the state of Kentucky, to the effect that personal property where governed by the laws of that state descends to nephews and nieces per stirpes. Appellant prays a distribution on the basis of one-half to him and one-half to appellees other than the administrator. The third paragraph of answer is to the effect that February 1, 1907, there was no person capable of properly caring for decedent except appellant and appellees and Virginia A. Hayward, the mother of the latter; that on said day Virginia A. Hayward, pursuant to the request of decedent, took charge and custody of her person and removed her to the home of the former in Vanderburgh county, and changed and moved her legal residence and domicile from Kentucky to Vanderburgh county, Ind.; that, continuously thereafter until her death, decedent was an inmate of and was cared for in the home of Virginia A. Hayward in Vanderburgh county; that all the acts of appellees and of Virginia A. Hayward in the premises were done for the welfare of decedent, and not for the purpose of changing the distribution or descent of her personal estate; that for many years prior to February 1, 1907, and continuously thereafter, decedent's entire personal estate was in Vanderburgh county; that after February 1, 1907, decedent's legal residence and domicile was not changed from Vanderburgh county. The fourth paragraph of answer is to the effect that for many years prior to 1908, decedent's entire personal estate was in Vanderburgh county, and that throughout that year and continuously thereafter both her person and her personal estate were in that county. Facts are averred to the effect that, in 1908, the Vanderburgh circuit court by a proceeding brought and regularly prosecuted under section 3101 et seq., Burns 1914, appointed a guardian for the person and estate of decedent as a person of unsound mind. It is averred, also, that thereafter neither the guardian nor decedent removed the legal residence and domicile of the latter from Vanderburgh county. The theory of this paragraph is that by said proceeding the court adjudicated that the legal domicile of decedent was in Vanderburgh county. The seventh paragraph of answer alleges generally that, in a proceeding had in the Vanderburgh circuit court, the husband of appellee Minnie L. Flickner was appointed guardian of decedent, and that after his appointment he changed and removed the legal residence and domicile of decedent from Kentucky to Vanderburgh county, Ind.

[1] In determining the sufficiency of the respective paragraphs of answer, it must be taken as conceded that the actual facts are that on February 1, 1907, decedent was legally domiciled in the state of Kentucky; that on said day, and at all times thereafter, she was, by reason of mental infirmity, incapable of intelligent action in her own behalf, or of determining any question for herself, or of forming any intent with reference to changing or choosing a domicile, and that she did not by any act or intent of her own change her domicile from Kentucky, or choose one in Indiana. These facts must be taken as conceded, because they are so averred in the petition and are not traversed by the answers. By the answers, however, appellees seek to avoid the force and effect of such facts as follows: By the third paragraph, that Virginia A. Hayward, at decedent's request changed the latter's domicile from Kentucky to Indiana; by the seventh paragraph, that the guardian, a stranger to decedent's blood, by virtue of his authority as such guardian, changed decedent's domicile, as aforesaid; by the fourth paragraph, that the real facts respecting decedent's domicile may not be inquired into, as that question was adjudicated and set at rest by the proceedings wherein a guardian was appointed over decedent's person and estate.

It will be observed that primarily the sole question for our determination is whether, under the averred facts, decedent at the time of her decease was domiciled in Kentucky or Indiana. The importance of the question consists in the following: If decedent was domiciled in Kentucky, then her personal estate in the hands of the administrator must be distributed under the laws of Kentucky. By such laws, as pleaded, the personal estate of a decedent, as we have said, descends to nephews and nieces, where they are the sole heirs, per stirpes, and not per capita; and hence, if that law governs, appellant is entitled to a full one-half of the personal estate of decedent, subject to distribution. But, if decedent at her decease was domiciled in Indiana, then her personal estate subject to distribution must be distributed under the statutes of Indiana. By such statutes, where nephews and nieces are the sole heirs, they take the personal estate per capita and not per stirpes. It follows that, if the laws of Indiana govern, appellant takes a one-seventh of decedent's personal estate in the hands of the administrator for distribution, and appellees, other than the administrator, take six-sevenths thereof. Section 2993, Burns 1914; Baker v. Bourne, 127 Ind. 466, 26 N. E. 1078;Blake v. Blake, 85 Ind. 65.

[2] If the court erred in its ruling on the demurrer to each of said paragraphs of answer, this case must be reversed. If any one of such paragraphs is good as against demurrer, it alone is sufficient to support the judgment, and the cause must be affirmed. Williams v. Wood, 60 Ind. App. 69, 107 N. E. 683, and cases.

[3] Appellees argue that, in order that a person of unsound mind may establish his domicile, a slight degree of understanding is sufficient, and that the mere fact that he is of unsound mind does not necessarily preclude him from establishing his domicile. Appellees cite such cases as Culvers' Appeal, 48 Conn. 165;Mowry v. Latham, 17 R. I. 480, 23 Atl. 13;Talbot v. Chamberlain, 149 Mass. 57, 20 N. E. 305, 3 L. R. A. 254. While not doubting the soundness of these decisions, the principle thereby announced is not applicable here. No question of the mental capacity of decedent to change or establish her domicile, or whether she did change it, or attempted to do so, is involved under the pleadings here. The effect of the petition here is that decedent did not have the mental capacity to change her domicile, or to form an intent to that end, and that she did not change her domicile from Kentucky to...