Rumsey v. Durham
| Decision Date | 25 May 1854 |
| Parties | Rumsey v. Durham |
| Court | Indiana Supreme Court |
ERROR to the Dearborn Probate Court.
The decree is affirmed with costs.
D. S Major, A. Brower and John Ryman, for the plaintiff.
J. T Brown and Ebenezer Dumont, for the defendants.
This was a petition by John Rumsey, administrator with the will annexed of Watkin Rumsey, deceased. The object of the proceeding was to obtain an order directing the sale of certain real estate, according to the provisions of the decedent's last will. The petition sets forth the will. It provides as follows:
&c., "I give and bequeath unto my wife, as long as she remains my widow, the use and benefit of all my real and personal property, for the support of herself and family.
This will was executed in February, 1832. Within that year the testator died. The will was admitted to probate; but the executors therein named died without being qualified to act under it.
The testator, at his death, was seized of the south-west quarter of section 9, in township 5, of range 2, in Dearborn county. He left Ann Rumsey, his widow, and the following named children and heirs at law, viz.: John Rumsey, William Rumsey, Watkin Rumsey, James Rumsey, Robert Rumsey, George Rumsey, Josiah Rumsey, and Ann Rumsey, now married to Noah C. Durham. Ann Rumsey, the widow, remained in possession of all the property donated by her husband, from the time of his death up until her death, which occurred in October, 1851. James, George, Watkin, and Josiah, died before their mother, Ann Rumsey, intestate, without issue or their descendants. Robert died in September, 1851, testate, leaving only one child, viz., Mary E. Rumsey. So that John Rumsey, William Rumsey, and Ann Durham, were all the testator's children alive at his widow's death. The petition prays the sale of said land, as provided by the will, and that the proceeds, after the expenses of sale, be paid over, in equal portions, to John Rumsey, William Rumsey, Ann Durham, and Mary E. Rumsey. John was the petitioner. William was called and defaulted. Mary, being a minor, answered by her guardian. And Noah C. Durham and his wife filed their plea.
The plea admits the facts stated in the petition; but sets up that Ann Rumsey, at her death, left a will, whereby she directed all her property to be sold by her executor, and the proceeds thereof to be paid over to her daughter, Ann Durham. To this plea there was a demurrer overruled, and the petitioner having failed to make further answer to the plea, the Court ordered the land to be sold and the money arising therefrom to be divided into eight portions; that the surviving children and grandchild should each take one-eighth, and one-fourth of four-eighths, and Ann Durham, the devisee of Ann Rumsey, should take one-half of four-eighths.
The order of the Court assumes the ground that the estate transmitted by the will to the testator's children, vested in them upon his death, to be enjoyed at the decease of his wife; that under the law in force when George, Watkin, James and Josiah died, Ann Rumsey, being their mother, became entitled to a certain portion of their vested interests in the property, which, by her will, passed to Ann Durham.
The testator's will evidently created a life-estate in Ann Rumsey, and after her death or marriage it directed the executors, under an express power, to sell the premises, and divide the proceeds equally among his children. This direction to sell was, in effect, a conversion of the land into personalty. In equity it must be considered and treated as money. 1 Jarman on Wills, 473; 2 Story Eq. Jurisp. 320. Therefore, the subject of the testator's gift to his children was personal property, and its distribution, under the will, should be governed by the same rule as if the donation in the first instance had been money.
When did the property vest in the children? This is the...
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