Stimson v. Rountree

• Decision Date: 09 October 1912
• Docket Number: 7,670
• Citation: 99 N.E. 439,51 Ind.App. 207
• Parties: STIMSON, ADMINISTRATOR, v. ROUNTREE, EXECUTOR, ET AL
• Court: Indiana Appellate Court

99 N.E. 439

51 Ind.App. 207

STIMSON, ADMINISTRATOR, v. ROUNTREE, EXECUTOR, ET AL

No. 7,670

Court of Appeals of Indiana

October 9, 1912

From Boone Circuit Court; Samuel R. Artman, Judge.

Action by Robert B. Stimson, administrator of the estate of Lucy Stimson, deceased, against Charles Rountree, executor of the will of Florence B. Rountree, deceased, and others. From a judgment for plaintiff, the plaintiff appeals.

Modified and affirmed.

Crane & McCabe and R. B. Stimson, for appellant.

W. T Whittington and R. H. Williams, for appellee.

OPINION

HOTTEL, C. J.

This is a second appeal in this case. Demurrers were sustained to appellant's complaint in the court below, and on appeal the Supreme Court reversed the judgment and directed the trial court to overrule the demurrers. Stimson v. Rountree (1907), 168 Ind. 169, 78 N.E. 331, 80 N.E. 149.

Appellee Rountree, both as executor and in his individual capacity then filed four paragraphs of answer, the first of which, a general denial, was afterwards withdrawn. Demurrers to the remaining paragraphs were sustained as to the second and third and overruled as to the fourth. Issues were closed by a reply in general denial. Appellant's motion for judgment on the pleadings was overruled and the case tried by the court, which made a general finding in favor of appellant, to the effect that he was entitled, absolutely, to the sum of $ 3,000 out of the estate of Florence B. Rountree, deceased, with six per cent interest computed from the end of the first year after the death of the testatrix, a total of $ 4,188; that appellant was not entitled to interest during the year beginning at the death of the testatrix; and that said $ 4,188 should be a lien on the real estate of the testatrix. Judgment on the findings. Appellant's motions to modify the judgment and for a new trial were overruled, and this appeal taken.

The facts in the case, as disclosed by the averments of the complaint, necessary to an understanding of the questions here presented, are, in brief, as follows: Florence B. Rountree died testate in Montgomery county, Indiana, the owner of real estate of the probable value of $ 12,000, and personal property of the value of $ 100, leaving no debts or claims of any kind against her estate, except the legacies hereinafter mentioned. Her will, set out in the complaint, in one of its items gives her niece, Mary Stimson, $ 500. Item two of the will, which is the one involved in this appeal, provides as follows:

"I give and devise, to my niece Lucy Stimson, the sum of Three Thousand (3,000) Dollars out of my estate; said sum to be held by my executor hereinafter named, in trust for said Lucy Stimson, who is an invalid, and likely to remain so during her life, and in consequence thereof likely to need portions of the principal of said sum from time to time; it being my desire that in case she needs any portion of said principal sum from time to time, it be furnished to her as the need therefor may arise. Said sum, or the portions remaining; to be loaned by my said executor with safe and sufficient security and the income therefrom as well as portions of the principal thereof, to be paid to my said niece as her comfort and welfare may require from time to time: It being my will, however, that said sum of Three Thousand (3,000) Dollars shall be the absolute property of my said niece Lucy Stimson, the same being thus placed in trust for her in order that it may thereby be the more certainly applied to her needs from time to time as above provided. In case, however, she does not survive my husband, Charles Rountree, and my niece, Mary Stimson, her sister, named in item one of this will, then upon her (the said Lucy's) death, said sum or the portion thereof then remaining, shall be divided equally between my said husband, Charles Rountree, and my said niece, Mary Stimson; and if at the time of the death of the said Lucy, my said husband, Charles Rountree, shall not then be living, in that case, the half of said sum he would have taken had he then been living, shall go to my sister, Edna B. Stimson, and if neither my sister nor my said husband be living, at the time of the death of said Lucy Stimson, then in that case, the said Mary Stimson shall take the whole of what is remaining of said sum mentioned in this item."

Item three of the will, gives, devises and bequeaths to her husband, Charles Rountree, all the residue of her property of every kind and character, whether real, personal or mixed; and item four nominates and appoints said husband, Charles Rountree, the executor of the will.

On February 12, 1902, said will was probated in said court, and Charles Rountree appointed and qualified as executor thereof. All the persons named as legatees in said will survived the testatrix, and all except Lucy Stimson were still living when appellant filed this action. Lucy Stimson died April 5, 1903, in Vigo county, intestate, and her father, Robert B. Stimson, qualified as administrator of her estate, and brought this action to recover the legacy mentioned in item two of said will. Immediately after the death of said testatrix, Florence Rountree, her said husband, Charles, took possession of all the property left by said decedent at the time of her death, disposed of by said will, and has converted the same, with all the rents and profits thereof, to his own use, and has continuously since the death of said testatrix remained in the possession and enjoyment thereof. The rents and profits of said property, during the period of said Charles Rountree's possession, were of the annual value of $ 1,000. The only bond given by said Charles Rountree was a bond for $ 200 only, which bond was given by him as executor of said will; that "he wholly failed to qualify or give bond as trustee of the three thousand dollars given by said will to said Lucy Stimson, or, to invest for or pay to her said money or any part thereof, or any interest thereon." The former appeal in this case settled the question that the bequest of the $ 3,000 was an absolute gift to Lucy B. Stimson, and that the attempted disposition by the testatrix of so much of the same as might be left at the death of said Lucy was void, for repugnancy. Pursuant to that decision, the court below overruled the demurrer to the complaint, which had been before sustained, and on the trial rendered a judgment for appellant for $ 4,188.

Appellant assigns as error the ruling of the court in overruling the demurrer to the fourth paragraph of answer filed by Rountree, both as an individual and as executor. We are of the opinion that any evidence admissible under this answer was admissible under the general denial, and it appears from the record in this case that no harm could have come from such ruling, if erroneous. In this connection we may say that all the errors assigned and relied on by appellant present in one form and another the question of whether appellant was entitled to have included in his judgment an additional year's interest, which turns on the question of whether interest should have been calculated on said $ 3,000 from the death of the testatrix.

As a general rule, a general legacy, with no time of payment specified, "will draw interest only after the expiration of a year from the death of the testator." State, ex rel., v. Crossley (1879), 69 Ind. 203, 211; Case v. Case (1875), 51 Ind. 277; 2 Williams, Executors (5 Am. ed.) 1283; Lupton v Coffel (1911), 47 Ind.App. 446, 94 N.E. 799, 801; Clark v. Helm (1891), 130 Ind. 117, 119, 29 N.E. 568, 14 L.R.A. 716; Brown v. Bernhamer (1902), 159 Ind. 538, 540, 65 N.E. 580. For similar holdings in other jurisdictions see Redfield v. Marvin (1906), 78 Conn. 704, 708, 63 A. 120; Estate of Eichelberger (1...