Lantz v. Caraway
| Decision Date | 25 November 1913 |
| Docket Number | 22,176 |
| Citation | 103 N.E. 335,180 Ind. 484 |
| Parties | Lantz v. Caraway et al |
| Court | Indiana Supreme Court |
From Hancock Circuit Court; Robert L. Mason, Judge.
Proceeding on the petition of William G. Lantz for the construction of a drain. Mary J. Caraway and others filed remonstrance. From a judgment for remonstrators, the petitioner appeals.
Reversed.
Samuel J. Offutt, for appellant.
Samuel A. Wray and Robert Williamson, for appellee.
This is a proceeding instituted by appellant to have tiled a certain public drain located in Hancock County. Appellees filed a remonstrance to appellant's petition and on the issues thus joined the cause was tried by the Hancock Circuit Court. From a finding and judgment that appellees' remonstrance was sufficient and that appellant's petition should be dismissed, this appeal is taken.
Appellees have filed a motion to dismiss this appeal on the ground that certain owners of lands which are affected by the drain in question have not been joined as appellees. While it is true that such owners were, in a sense, parties to the record, they were not parties to the judgment from which the appeal is taken and it was not necessary to name them in the assignment of errors. Pitser v McCreery (1909), 172 Ind. 663, 665, 88 N.E. 304, 89 N.E. 317; Kline v. Hagey (1907), 169 Ind 275, 277, 81 N.E. 209; Smith v. Gustin (1907), 169 Ind. 42, 46, 80 N.E. 959, 81 N.E. 722.
The sole question presented by the errors assigned is the sufficiency of the two-thirds remonstrance to appellant's petition. Among the parties named in said petition as owners of land affected by the drain were John Manche and John M. Ashcraft. The trial court found that they were not the owners of the land described in the petition, but had only an interest in the proceeds to be derived from the sale of said land and were, therefore, not to be counted in determining the sufficiency of appellee's remonstrance. It appears from the evidence that under the will of one John Ashcraft, who, at the time of his death, was the owner of said described real estate, his widow was to have a life estate in the same and at her death the land was to be sold and the proceeds divided among his children. Subsequent to his death and prior to the institution of this proceeding John Manche and John M. Ashcraft became the owners of a seven-tenths interest in the proceeds to be derived from the sale of said land upon the death of the life tenant. The question now is, Are they "landowners" within the meaning of the drainage statute?
John Ashcraft gave positive directions in his will that the real estate in question should be sold on the death of his widow and the proceeds of such sale divided among their children. Appellees contend that under such conditions an equitable conversion of the real estate took place at the death of the testator and the interests taken by his children under the will assumed the character of personal property from that date. This doctrine of equitable conversion finds support in the following cases: Comer v. Light (1911), 175 Ind. 367, 93 N.E. 660, 94 N.E. 325; Rumsey v. Durham (1854), 5 Ind. 71; Walling v. Scott (1912), 50 Ind.App. 23, 96 N.E. 481, 97 N.E. 388; Nelson v. Nelson (1905), 36 Ind.App. 331, 75 N.E. 679.
This doctrine, however, is not a fixed rule of law, but proceeds upon equitable principles, and its application will depend somewhat upon the circumstances under which it is invoked. As is said in Comer v. Light, supra, 373, it "is interposed for the purpose of carrying out the intention of testators so far as that can be done within the rules of law, and generally for the purposes of equality, and doing equity between heirs or next of kin, where no other rights intervene, but it has never been understood that a testator can change realty into personalty, or vice versa, by the mere declaration that it shall be one or the other." The rule of equitable conversion is applicable as between the testator and the specific beneficiary to determine the character of the estate which the latter is ultimately to receive under the will and, in the absence of any expressed contrary intention on the part of the testator, the share of a beneficiary who dies before the termination of the life estate will generally pass as that character of property which he would have received upon the death of the life tenant. Rumsey v. Durham, supra; Nelson v. Nelson, supra; 9 Cyc. 851, and cases cited.
But it is obvious that during the interim between the death of the testator and the time fixed for the actual conversion of the land into money, the title to said land must vest in some one. It is neither in abeyance nor in the life tenant and must, therefore, pass to either the executor or the legatee or else descend to the heirs of the testator, since an heir can not be cut off by will except by a devise of the estate expressly or by implication, to some one else. Bowen v. Swander (1899), 121 Ind. 164, 22 N.E. 725, and cases cited; Doe v. Lanius (1852), 3 Ind. 441. Whether the title vests in the executor, depends on the language used in the will. To quote from Bowen v. Swander, supra, 170: ...
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