Munson v. Cole

• Decision Date: 11 December 1884
• Docket Number: 9682
• Citation: Munson v. Cole, 98 Ind. 502 (Ind. 1884)
• Parties: Munson v. Cole et al
• Court: Indiana Supreme Court

98 Ind. 502

Munson v. Cole et al

No. 9682

Supreme Court of Indiana

December 11, 1884

From the Cass Superior Court.

S. T McConnell, for appellant.

M Winfield, Q. A. Myers, N. O. Ross and G. E. Ross, for appellees.

OPINION

Best C.

On the 4th day of December, 1864, Chauncey Carter died testate, the owner of the north half of lot No. 20, in John Tipton's administrator's second addition to the town of Logansport, several other parcels of real estate and considerable personal property, leaving surviving him his widow, Mary Carter, the appellant, his daughter, and four grandchildren, to whom he devised said property in the following proportions: One-fourth to the widow, one-fourth to the daughter, and the balance to his grandchildren, and by his will nominated the father of said grandchildren, Joseph Culbertson, executor of his will and trustee of his estate. Pending the settlement of his estate, and more than five years after said Culbertson had assumed the duties of said trusts, he purchased of the widow and daughter their interests in said estate, and to secure the payment of the purchase-money executed to them a mortgage for $ 10,500 upon all of said real estate and upon the east half of lot 56 in the old plat of said town. Afterwards said Culbertson subdivided said north half of lot 20 into twenty-two lots, numbered from one to twenty-two inclusively, and sold and conveyed said lots to the various appellees for value, under and by virtue of an alleged power conferred upon him by the will of said testator. Subsequently the widow and daughter foreclosed said mortgage, and sold all the property embraced therein, except the east half of said lot 56, under said decree, and only realized therefrom a portion of the debt secured by the mortgage. Thereupon they brought this action to foreclose said mortgage for the balance due thereon against the appellees, who were not made parties to the previous foreclosure proceedings. Thereafter, but before answer, the mother died devising her estate to the daughter, and this fact was brought into the record by supplemental complaint. Issues were then formed upon the complaint, upon a cross complaint by each appellee, and these were submitted to the court for trial, with the request that the court find the facts specially and state its conclusions of law thereon. This was done. A summary of the facts found, as taken from appellant's brief, is in these words:

"1. Chauncey Carter died testate December 4th, 1864.

"2. By his will, in the first three clauses, he devised one-fourth of his estate, real and personal, to his wife, Mary Carter; one-fourth to his daughter Emma, the appellant, and one-half to the children of his deceased daughter Rhoda and Joseph Culbertson. The fourth clause of the will is as follows: 'The foregoing devises and bequests are made subject to the following conditions, to wit: 4. I hereby constitute and appoint my son-in-law, Joseph Culbertson, executor of my last will and testament, and trustee to manage the property above devised and bequeathed, investing the title in him as such trustee, empowering him, and enjoining him, to continue, carry on, and manage my business in merchandising and all other business, for the joint interests of his children, my wife and daughter Emma, for and during the term of five years, and as much longer as shall be mutually agreed upon by my said legatees; investing my said executor with full power under the will to sell and convey all my real estate or any part thereof at his own discretion and without any application to a court of law, except my present residence in the city of Logansport, which shall not be sold except by the consent of my wife, Mary Carter, and that my residence shall be occupied by my wife and daughter and by Joseph Culbertson and his family in common, as a home, during the pleasure of each of them. I further authorize my said executor to purchase and improve such real estate as he may deem necessary or expedient for the transaction of the mutual and joint business of my said legatees. And I hereby make and declare the foregoing to be my last will and testament.'

"3. The will was probated, and the executor qualified on the 30th day of May, 1865. The executor continued to act as such until the 1st day of June, 1878, when he was removed on appellant's application.

"4. The testator died seized in fee of all the land described in the mortgage sued on except the east half of lot No. 56, old plat of Logansport.

"5. On the 26th of October, 1870, Mary Carter and the appellant, who was then married, her husband joining, sold and conveyed all their interest in the lands mortgaged to Joseph Culbertson, the executor, as an individual, not as executor, for $ 10,500, for which he executed the note and mortgage mentioned in the complaint. The mortgage was duly recorded.

"6. Mary Carter and appellant brought suit in the Cass Superior Court, and on the 16th of November, 1878, recovered judgment of foreclosure for $ 7,848.75, the amount then due, under which all the mortgaged premises were sold except the east one-half of lot 56, old plat of Logansport, and the lots claimed by appellees.

"7. That plaintiffs realized on those sales the aggregate sum of $ 1,981.70.

"8. On or about March 27th, 1875, Culbertson sold the east half of said lot 56 for $ 8,500, and on that day the mortgagees released the mortgage as to that lot. Of that amount $ 4,000 were paid to the mortgagees, and credited on the mortgage debt.

"9. On the 10th of November, 1877, the mortgagees released the mortgage as to the west sixty feet of lot 49, old plat of Logansport. This parcel was then, and is, worth $ 6,000. That it was sold by Culbertson as executor, and that no part of the purchase-money was applied on the mortgage debt.

"10. Since the commencement of this suit Mary Carter has died testate, leaving appellant her sole devisee.

"11. On April 1st, 1871, Culbertson, as executor, subdivided and platted the north half of lot 20, in Tipton's administrator's second addition to Logansport, into twenty-two lots.

"12. On the 19th of August, 1872, the executor, as such, sold and conveyed one of those lots to appellee Cole, and at divers times during that year and 1873, as executor, sold and conveyed to the other appellees the respective lots claimed by them, all for a fair value.

"13. Appellant and her mother lived at Albany, N. Y., from 1871 until 1878, and had no actual knowledge of the subdivision of the north half of lot 20, or of any of the sales to the appellees, until the year 1878; but they did know that Culbertson continued to act as executor, and made no objection till they petitioned for his removal in 1878."

The court, upon the facts found, stated the following conclusions of law:

1st. That Joseph Culbertson, as executor, had power to subdivide and plat the north half of said lot twenty.

2d. That said executor had power to sell and convey said property after the expiration of five years from the death of the testator.

3d. That the interest and title of the appellant and her mother in said real estate were subject to the right of the executor to sell the same in execution of his trust.

4th. That the conveyance by them to him, and the execution of the mortgage by him to...