Moore v. Moore
| Decision Date | 15 May 1900 |
| Docket Number | 19,171 |
| Parties | Moore, Administrator, v. Moore et al |
| Court | Indiana Supreme Court |
Rehearing Denied July 10, 1900.
From the Boone Circuit Court.
Reversed in part.
I. M Sharp, for appellant.
C. M Greenlee, B. R. Call and A. J. Shelby, for appellees.
Appellant commenced this proceeding to sell the real estate of his intestate, described in the petition, to pay debts. Charles J. and Ada Fox were made defendants to said petition to answer as to their interest, if any, in said real estate. Ada Fox filed a cross-complaint, asking that she be reimbursed for valuable and lasting improvements made by her on said real estate, and for other relief. After issues were joined, the cause was tried by the court, and, over appellant's motion for a new trial, said real estate was ordered sold, and that, after applying a part of the proceeds of the sale to the payment of the debts of said decedent, said Ada Fox be paid the sum of $ 800 to reimburse her for the improvements made by her on said real estate, and the remainder to be accounted for by said administrator.
The assignment of errors calls in question the sufficiency of the cross-complaint of Ada Fox.
The allegations of the cross-complaint of Ada Fox are substantially as follows: That Willis E. Moore died intestate in September, 1896, the owner of the real estate described in the petition, leaving as his only heirs his sons Jonathan J., David A., and Willis C. Moore; that said Jonathan J. was duly appointed administrator of his estate; that in 1897 the cross-complainant entered into an oral agreement with said Jonathan J. Moore, administrator, and the other heirs, that said administrator was to obtain an order of court to sell said real estate at private sale, and convey the same to this cross-complainant, for which she was to pay $ 1,200; that under said agreement she took possession of said real estate, and while in possession thereof she made lasting and valuable improvements thereon in rebuilding the dwelling-house and outhouses and fences, to the value of $ 1,050; that said real estate, by reason of said improvements, has been greatly enhanced in value, and is now worth $ 2,500, and without them would not be worth over $ 1,200; that this cross-complainant took possession of said real estate and made said lasting improvements thereon, relying upon the statement made and the agreement entered into with said parties as herein set forth; that said parties and said administrator at the time of making said agreement represented to this cross-complainant that said estate was solvent, and that said real estate would not be needed by said administrator to pay the liabilities of said estate; that said administrator and said parties have failed and refused to carry out their part of said agreement, or any part thereof. Prayer that the court "order said administrator to sell said real estate and the improvements thereon, and that the cross-complainant be given a first lien on the proceeds of said sale for $ 1,400, the present value of said improvements," etc.
The devisee or heir of real estate takes the same subject to the indebtedness of the deceased. Baker v. Griffitt, 83 Ind. 411, 416; Moncrief v. Moncrief, 73 Ind. 587; Weakley v. Conradt, 56 Ind. 430.
In this State the real and personal estate of a decedent are equally chargeable with the payment of his debts, it being provided, however, that the real estate can only be sold when the personal estate has been exhausted, or is insufficient for the payment of debts. Fiscus v. Moore, 121 Ind. 547, 552, 553, 7 L. R. A. 235, 23 N.E. 362. Under our statutes the real estate is as completely subject to the debts of the intestate as the personal estate, and when the personal estate is sufficient to pay the debts of the intestate, yet if it is wasted by the administrator the real estate may be sold for the payment of debts of the intestate even though the heirs have sold and conveyed the...
To continue reading
Request your trial