Sherwood v. Thomasson
| Decision Date | 01 May 1890 |
| Docket Number | 14,115 |
| Citation | 24 N.E. 334,124 Ind. 541 |
| Parties | Sherwood, Administrator, v. Thomasson |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Sept. 17, 1890.
From the Tippecanoe Circuit Court.
The judgment is reversed with costs.
A. L Kumler and J. B. Sherwood, for appellant.
W. F Severson and H. H. Vinton, for appellee.
Mary E. Thomasson, as widow of Solomon Romig, deceased, asserted the right to a certain distributive share of the funds in the hands of the administrator of the decedent's estate. In the statement of her claim she alleged that all the debts of the decedent had been paid, and that there remained in the hands of the administrator $ 10,000 for distribution. She averred that she was lawfully entitled to receive $ 500 out of this fund as widow of the decedent, which amount she prayed the court to order the administrator to pay over to her.
It was not necessary for the claimant to show in her petition that she had not deserted her husband, and that she was not living in adultery at the time of his death. In the absence of averment and proof to the contrary, the presumption is in favor of chastity, and that a wife has not abandoned her husband to live in adultery with another.
The complaint or petition is not formally accurate, but it was sufficient to apprise the administrator of the nature of the claim, and to bar another action for the same demand. It shows that the claimant is asserting the right to receive $ 500 as widow out of the fund or surplus on hand for distribution, after the settlement of the estate of her deceased husband. This is all that was required. Windell v. Hudson, 102 Ind. 521, 2 N.E. 303; Davis v. Huston, 84 Ind. 272; Price v. Jones, 105 Ind. 543, 5 N.E. 683.
There was no error in sustaining the demurrer to the second paragraph of answer. The petition proceeded upon the assumption that the claimant was entitled to receive $ 500 out of a fund in the hands of the administrator for distribution, and that she was entitled to the above sum under the statute as widow. The facts alleged in the petition might raise an inference that she was entitled to receive more, but for all that appears, all that she was entitled to as widow except the $ 500 claimed may have been paid. At all events that was all that was claimed. So far, therefore, as the answer assumed to set up a defence to an issue not tendered, or to the extent that it was not responsive to or in avoidance of an issue tendered by the petition, it was very clearly irrelevant.
The learned court, over the objection of the appellant, submitted the cause to a jury generally, as an action at law. This was error.
It is well settled that while an executor or administrator holds possession of a fund in his trust capacity, an action at law can not be maintained against him by a legatee or distributee to recover his share of the fund. 3 Williams Executors, 2046.
Anciently the administrator or ordinary, in right of the king, himself appropriated the residue of an intestate's estate, after payment of the debts, assuming to devote certain portions to pious uses, and to give certain other portions to the widow and children, if there were any. Statutes were afterwards passed which provided in detail for the distribution of the surplus of all estates. Enactments of this character are found in all the States.
It will appear from an examination of the statutes in this State...
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