Niehaus v. Cooper

Decision Date03 February 1899
Docket Number2,705
Citation52 N.E. 761,22 Ind.App. 610
PartiesNIEHAUS v. COOPER, ADMINISTRATOR
CourtIndiana Appellate Court

Rehearing denied June 29, 1899.

From the Vanderburgh Superior Court.

Affirmed.

S. R Hornbrook and W. M. Wheeler, for appellant.

F. B Posey and D. Q. Chappel, for appellee.

OPINION

WILEY, J.

Appellee, as the administrator of the estate of Catherine Niehaus, deceased, was plaintiff below. The complaint was in four paragraphs. The first charged appellant with conversion of money and property belonging to the decedent to his own use. The second paragraph proceeds upon the theory to recover for money and property which came into appellant's possession as the agent of decedent. The third paragraph seeks to charge appellant as executor de son tort. The fourth is upon a promissory note.

Briefly stated, the first paragraph alleges that one John Niehaus died testate December 25, 1880; that at the time of his death he was the owner of both real and personal property; that, by his will, he devised to his wife, Catherine Niehaus, all of his property during her life, and at her death it was to go in equal portions to his children and grandchildren; that appellant was one of the children of said John Niehaus; that said will was duly admitted to probate; that said Catherine elected to take under the will; that by said will appellant was nominated as executor, but never qualified as such; that at the death of the said John, said Catherine was the owner of, and entitled to the possession of, all the property left to her by said will; that, immediately after the death of said John, said appellant took charge of all of said property, used, managed, and controlled the same, all without any right or authority from said Catherine; that he continued to use, manage, rent, and control said property; that all of said personal property and the rents and profits of the real estate were wrongfully and unlawfully appropriated and converted to his own use and benefit, and without the knowledge or consent of said Catherine; that the said Catherine died intestate April 26, 1895; that appellee was duly appointed as administrator of her estate, and qualified as such; that no part of the property so converted by appellant has been returned either to said Catherine or her administrator, and that a demand has been made upon him for the return thereof. Accompanying this paragraph is a bill of particulars, setting out the property and money charged to have been converted. Appellant demurred to this paragraph of complaint, which was overruled, and such ruling is one of the errors assigned. Appellant says that this paragraph is not good, because it does not aver that the estate of the said John Niehaus had been settled, and his debts paid. In support of this contention, we are cited to Crist v. Crist, 1 Ind. 570, 50 Am. Dec. 481, and Leach, Ex., v. Prebster, 35 Ind. 415. We have examined these cases, but they lend no aid to appellant's position. Appellant has not pointed out any infirmity to the paragraph we are now considering, and we are unable to see any. There was no error in overruling the demurrer.

Appellant's answer was in six paragraphs; the first, second, and third pleaded the statute of limitations to the first, second and third paragraphs of the complaint; the fourth was a general denial; the fifth payment, and the sixth set-off. To the fourth paragraph of complaint appellee filed an answer of non est factum. To these affirmative answers appellee replied by general denial. As no question is raised as to the second, third, and fourth paragraphs of complaint we do not deem it necessary to refer to them in detail. The cause was tried by the court, and at request of appellant the court made a special finding of facts and stated its conclusions of law thereon. In so far as the facts found are essential to the decision of the case, they are as follows: That appellee is the administrator of the estate of Catherine Niehaus; that decedent died intestate April 26, 1895; that said Catherine was the wife and widow of John Niehaus, who died testate December 25, 1880; that at the time of his death the said John was the owner of certain property, real and personal; that he left surviving him the said Catherine, three sons, one daughter, and two grandchildren, who were children of one of said John's sons, who died before him; that, by his will, he devised to said Catherine a life estate in all his property, both real and personal, with power to sell and dispose of the personal property, and the remainder in five portions to his surviving children and grandchildren; that by said will appellant was nominated executor, but did not qualify; that said will was probated, and thereafter remained in full force; that said Catherine elected to take under the will; that, upon the death of the said John, appellant took possession and charge of the estate, both real and personal, for the said Catherine, managed and controlled the same for her until March 1, 1887; that he collected divers sums of money, and expended money in her behalf; that on said 1st day of March, 1887, the said John and Catherine had a full and complete settlement of all matters between them; that there was found due her from him $ 120, which he then paid her; that on or about March 16, 1887, the said Catherine leased to said John certain real estate for three years, for the agreed rental of $ 25 per year; that during said lease said John agreed to pay all taxes, etc., on said real estate, and keep the dwelling house in repair; that on said day appellant went into possession of the real estate so leased, and remained in possession until the death of said Catherine; that in March, 1887, the said Catherine entered into an agreement with the remainder-men that they should go into the possession of their several tracts of real estate and that they were to pay to her $ 25 each per annum, pay insurance, taxes, etc.; that subsequent to March, 1887, the said Catherine lived with appellant and a Mrs. Kirkpatrick, her daughter, in their respective homes; that from November 15, 1891, up to the date of her death, she resided with appellant as a member of his family, and upon the real estate leased to him; that on the 17th day of August, 1885, appellant obtained possession of $ 300 belonging to the said Catherine; that on July 20, 1889, he obtained an additional sum of $ 300 belonging to her, and deposited the same, being $ 600, in a bank, in the name of "C. Niehaus," under an agreement with the bank that said a...

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