Renner v. Ross

• Decision Date: 21 June 1887
• Parties: Renner and others v. Ross, Adm'r, etc.
• Court: Indiana Supreme Court

111 Ind. 269

12 N.E. 508

Renner and others

v.Ross, Adm'r, etc.

Supreme Court of Indiana.

June 21, 1887.

Appeal from circuit court, Fayette county.

Chas. A. Murray, J. M. McIntosh, and Chas. Roehl, for appellants. Conner & Frost, for appellee.

Elliott, J.

The appellee filed the petition on which the proceedings set forth in this record are founded, asking that the land of which his decedent died the owner be sold for the payment of debts due from his estate. David J. Renner was made a party to the petition by the appellee, and joins in the assignment of errors with his wife, Mary A. Renner, one of the heirs of the decedent; and it is argued, by the appellee's counsel, that, as he was neither a proper nor a necessary party to the proceeding, he had no right to join in an attack upon the petition. The appellee's position is not tenable. By his voluntary act he made David J. Renner a party, and he cannot now be heard to allege that he was not a proper party. Having brought Renner into court as a party, the appellee has no right to complain because Renner defends as a party. The appellee cannot be allowed to occupy inconsistent positions.

There was no error in overruling the motion to make the petition more specific. This motion asked that the petition be made to show “what portion of the real estate is liable to be made assets;” and, as the petition stated the facts, that was a question of law. It was not necessary for the petitioner to make his petition more specific than the statute requires, and that only requires a concise statement of the facts. Counsel argue the question as if the motion required the court to compel the petitioner to show whether the widow had elected to take under the law or under the will; but this is not the question presented by the motion. The petition shows that the only claim for which it is necessary to sell the real estate is that of the widow. On that point the allegations of the petition are these: “That there are no debts of said estate except the costs of this administration and the five hundred dollars given the widow by statute unless Mary A. Renner files claims against said estate for the expenses of the last sickness and funeral expenses which were paid by her; that, if the widow elects to take under the provisions of the will, all of said real estate, except the life-estate of said widow, is liable to be made into assets for the payment of said debts, and the part thus liable is of the probable value of $1,500; that, if the said widow does not elect to take under the provisions of said will, then the undivided two-thirds of said real estate is liable to be made into assets.” It is insisted that the petition does not state facts sufficient to entitle the appellee to an order for the sale of the property, because, for aught that appears, the widow may have elected to take under the will, and thus have relinquished her right to the statutory allowance.

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