Logan v. Logan

• Decision Date: 11 March 1932
• Docket Number: No. 13934.,13934.
• Citation: 97 Ind.App. 209,180 N.E. 32
• Parties: LOGAN v. LOGAN et al.
• Court: Indiana Appellate Court

97 Ind.App. 209

180 N.E. 32

LOGAN

v.LOGAN et al.

No. 13934.

Appellate Court of Indiana, In Banc.

March 11, 1932.

Appeal from Rush Circuit Court; Will M. Sparks, Judge.

Action brought by Earle C. Logan, in behalf of the estate of Orange Logan, deceased, and in the name of Emma D. Logan, administratrix of such estate, against Emma D. Logan and others. From a judgment in favor of defendants, plaintiff appeals.

Reversed, with instructions.Jesse E. Martin and Hanna & Daily, all of Indianapolis, Hugh D. Wickens, of Greensburg, and Gates Ketchum, of Rushville, for appellant.

Tremain & Turner and Thomas E. Davidson, all of Greensburg, and Titsworth & Titsworth, of Rushville, for appellees.

BRIDWELL, C. J.

On the 3d day of September, 1926, one Orange Logan died intestate while a resident of Decatur county, Ind., leaving surviving him as his only heirs at law his widow, Emma D. Logan, Clem G. Logan, and Nellie Logan, children of the decedent and his widow, and Earle C. Logan, a child of decedent by a former marriage. Letters of administration were granted to the widow, Emma D. Logan, and in due course she filed an inventory of personal property belonging to the estate of her deceased husband. After the filing of this inventory, Earle C. Logan, pursuant to section 3172, Burns' Ann. St. 1926, filed his petition in the Decatur circuit court alleging that all of the personal property belonging to the deceased at the time of his death had not been included in the inventory filed by the administratrix, and that said administratrix refused to inventory certain property of decedent, or to prosecute an action to recover same, claiming that such property belonged to her and her two children (appellees herein), and the prayer of the petition was that an order be entered authorizing and empowering petitioner to prosecute and make proof of the claim asserted in the petition, in the name of Emma D. Logan, administratrix of the estate of Orange Logan, deceased. This petition was heard by the Decatur circuit court and granted; petitioner having filed his bond as required by said statute to the approval of said court.

Under authority of the order entered, Earle C. Logan, in behalf of said estate and in the name of Emma D. Logan, administratrix of the estate of Orange Logan, deceased, brought this action, alleging, in substance, the facts above stated, and further that decedent, at the time of his death, was 69 years of age, and for many years prior thereto he had been enfeebled in body and mind, and by reason thereof was easily influenced in the management, control, transfer, and disposition of his estate, which facts were well known to the defendants (appellees); that about the year 1921 said decedent became of unsound mind and continued so until the time of his death, and during all of said time, on account of unsoundness of mind, he was incapable of transacting business and comprehending any business transactions, and appellees knew of his mental condition at all times; that at the time decedent became of unsound mind he owned valuable farms in Decatur county, Ind., and also owned a large amount of personal property consisting of notes, bonds, moneys, stocks, choses in action, live stock, farm machinery, grain, hay, household goods, jewelry, etc.; that appellees, for the purpose of converting and appropriating to their own use said property, personal and real, and the income from said estate, conspired and confederated together to procure by undue influence, persuasion, and fraud from said decedent, deeds of conveyance of said real estate, and the assignment and transfer to themselves of said personal property, and in the furtherance and carrying out of said conspiracy they unlawfully and without right did procure by undue influence, persuasion, and fraud deeds conveying to themselves all of said real estate, and unlawfully and without right, by undue influence, persuasion, and fraud, took possession of all said property, personal and real, and converted to their own use all of said personal property, without any consideration whatever passing therefor, and continued in possession thereof until the death of decedent; that from the time decedent became of unsound mind in 1921, up and until his death, appellees converted and appropriated to their own use personal property and income from real estate of the reasonable value of $75,000, which lawfully belongs to the estate of Orange Logan, deceased; that Emma D. Logan, administratrix, in violation of her trust, has refused and failed and neglected to file an inventory of said property, and claims a large part thereof as her own personal property, and acquiesces in the claim of said Clem G. Logan and Nellie Logan to the remainder thereof to the damage of said estate in the sum of $75,000. Judgment for this amount is prayed.

The issues were closed by an answer of general denial to the complaint. A trial by jury resulted in a verdict for appellees. Judgment was rendered on the verdict. Appellant filed motion for a new trial, which was overruled, and this appeal was perfected. Appellant assigns as error (1) the overruling of her motion for a new trial, (2) that the court erred in overruling appellant's motion to prohibit George L. Tremain and Rollin A. Turner from appearing as attorneys in the defense of this cause.

The record shows that, after appellant's complaint was filed, and while this case was pending in the Decatur circuit court, the firm of Tremain & Turner appeared for the appellees, and were representing them as their attorneys in this cause; that thereupon appellant, by Earle C. Logan, filed a verified motion praying for an order prohibiting said attorneys from acting for the defendants (appellees) or participating in any way in the defense of the action. This motion was overruled. The cause was then venued to the Rush circuit court. A verified amended motionwas then filed, by which appellant, through Earle C. Logan, again sought to have the law firm representing appellees barred from acting as attorneys for the defendants in the cause. Tremain & Turner filed their verified answer to the amended motion. The motion was denied, and this ruling is assigned as error in appellant's motion for a new trial, as well as an independent error.

The motion is predicated upon the theory that the attorneys for appellees have accepted inconsistent employment. It alleges many of the facts stated in the complaint, and, in addition, that said attorneys for a long time prior to and until the death of said decedent acted as his confidential advisers and transacted his legal business; that, after Orange Logan died, they accepted employment as attorneys for the administratrix of the estate, and obtained confidential information with reference to the extent and value of the estate, and inspected the books, papers, documents, and other private papers of said decedent; that it is unfair and contrary to law and good ethics for said attorneys to appear for the defendants and represent them in defeating the claim of said estate against such defendants. The verified answer to this motion gives in detail a recital of various transactions occurring after the death of decedent relating to steps taken by the different heirs in connection with the administration of the estate, and sets forth that other lawsuits between said heirs have been filed; that in all of said litigation Earle C. Logan has been represented by his present attorneys, and that...