Howe v. Gregory
| Decision Date | 14 October 1891 |
| Docket Number | 277 |
| Parties | HOWE ET AL. v. GREGORY, EXECUTRIX |
| Court | Indiana Appellate Court |
From the Tippecanoe Circuit Court.
Judgment affirmed, with costs.
A. L Kumler and T. F. Gaylord, for appellants.
R. P Davidson and F. W. Chase, for appellee.
The appellants filed a complaint in the nature of a claim against the appellee, Susan C. Gregory, executrix of the estate of William L. Gregory, deceased, to recover for the expense incurred in furnishing an elevator for the testator by the appellants, upon which claim a balance was claimed as due from said estate to the appellants of $ 115.65.
The appellee answered in two paragraphs:
First. General denial.
Second. Set-off and counter-claim, which alleged that the appellants were indebted to said appellee, as the executrix of the last will and testament of said William L. Gregory, deceased, for rent of store-room owned by said decedent, and occupied by said claimants, known and called No. 12 South Fourth street, in the city of Lafayette, Indiana, as follows:
1885. Jan. 12. Amount of rent retained by said
claimants
1889. Sept. 22. To balance of rent due
And said executrix avers that said sum of money, together with the interest, is wholly due and unpaid, and now amounts to a large sum, to wit, $ 350, for which she demands judgment etc.
The appellants replied by general denial. Afterwards the appellants dismissed their claim, and went to trial on the set-off and counter-claim. There was a finding and judgment for the appellee for $ 290. Appellant filed a motion for a new trial, which was overruled, and exception taken.
The errors assigned in this court and presented in argument are that the circuit court erred in overruling the motion for a new trial, and that the finding of the court was not sustained by sufficient evidence and was contrary to law.
The evidence is in the record, and as it is brief we here set it out:
Susan C. Gregory testified that she was the widow of William L. Gregory, who died in 1884; that she was the executrix of the last will of William L. Gregory; that the claimants, Howe & Shipley, occupied the store-room referred to in the counter-claim for a number of years prior to the death of her husband--did not know just when their tenancy began; they continued to occupy said premises after the death of her husband until about the first of October, 1889; since the death of her husband they had paid her rent of said store-room; there was a balance of twenty-five dollars still owing for rent which had been due since January 12th, 1885; the rent for the last quarter, ending October 1st, 1889, was also due and unpaid; the amount of the quarter's rent was two hundred and fifty dollars; never made any demand for the payment of this rent prior to the commencement of this action. "Howe & Shipley didn't pay the twenty-five dollars due January 12th, 1885, because they claimed I should pay for an elevator which they had put in the store-room; this I refused to do; Mr. Shipley came to see me, and wanted me to agree to pay for the elevator; I told him I would not do it, for Mr. Gregory refused to put in the elevator, and they put it in for themselves; he promised to send me up a check for the rent next day, for the rent then due, and when it came it was twenty-five dollars short, and it has stood just that way ever since; did not agree to let the twenty-five dollars go on the elevator; did not demand the payment of the rent at any time, for they always went and paid it into bank to my credit without asking, except the last quarter, which they did not pay."
This was all the evidence in the case, and the statements made by the appellee on the witness-stand must be taken as the facts in the case, because there was no conflict, and the facts so stated by the appellee were undisputed.
It is claimed by the appellants that, as it is alleged in the counter-claim that the appellants were indebted to the appellee in the capacity of executrix of the last will and testament of William L. Gregory, deceased, for rent of a store-room owned by the testator in his lifetime, and occupied by the appellants, this allegation in the counter-claim should have been proven to have entitled the appellee to judgment; "that an executor, as such, has no right to take possession of his testator's real estate, or to receive the rents thereof, unless authorized to do so by the will, or in the absence of the heirs or devisees on the death of the testator;" that the burden was...
To continue reading
Request your trial