Tippecanoe Loan & Trust Co. v. Carr

• Decision Date: 30 October 1906
• Docket Number: No. 5,818.,5,818.
• Citation: 40 Ind.App. 125,78 N.E. 1043
• Court: Indiana Appellate Court
• Parties: TIPPECANOE LOAN & TRUST CO. v. CARR et al.

40 Ind.App. 125

78 N.E. 1043

TIPPECANOE LOAN & TRUST CO.

v.CARR et al.

No. 5,818.¹

Appellate Court of Indiana, Division No. 1.

Oct. 30, 1906.

Appeal from Circuit Court, Tippecanoe County; R. P. De Hart, Judge.

Action by the Tippecanoe Loan & Trust Company as administrator of the estate of J. P. Oglebay, deceased, against Ada May Carr and another, as garnishee. From a judgment sustaining the demurrers of defendant and garnishee, plaintiff appeals. Affirmed.

Will R. Wood and Oglebay & Oglebay, for appellant. Stuart, Hammond & Simms, for appellees.

MYERS, J.

Appellant commenced this action against appellees, charging appellee Carr with the sale of real estate belonging to appellant's decedent, and appropriating the proceeds arising from such sale to her own use. Also with the conversion of personal property, and personal judgment is demanded. The complaint consisted of two paragraphs. A demurrer for want of facts was sustained to the first, and thereafter the second paragraph was dismissed. Judgment in favor of appellees. The ruling of the court in sustaining the demurrer to the first paragraph is the only error assigned.

The substance of the paragraph in question shows that appellant is the duly qualified and acting administrator of the estate of J. P. Oglebay, Jr., deceased; that said decedent left, as his only heirs at law, his wife, now Ada May Carr, one of the appellees herein; that no administration was ever had upon said estate; that decedent at the time of his death was the owner of certain real estate in Tippecanoe county, Ind.; that thereafter his said wife sold said lands, and, in payment therefor, received certain promissory notes; that said notes, as well as the proceeds resulting therefrom, belong to the estate of said decedent, and appellant, as administrator, is entitled to the same, to be administered upon as provided by law; that a claim for $1,000 evidenced by a promissory note executed by the said Oglebay in his lifetime has been filed against said estate; “that there is now due from said defendants to said complainant, the sum of $2,000, on account of moneys and other personal property, which the said defendant Ada May Carr has wrongfully converted to her own use, which said property belongs to your complainant, as administrator of said estate, as aforesaid; “that the assets above referred to are the only assets to the knowledge of appellant, out of which to pay the liabilities thereof; that appellee Ada May Carr is a nonresident, and the National Fowler Bank of Indiana is made a garnishee defendant, under the belief that it has in its possession, as agent of appellee, said notes or the proceeds thereof. Judgment for $2,000 is demanded.

1. There is no direct averment in this paragraph that appellant's decedent, at the time of his death, owned any personal property. The statement that “other personal property” was converted by Mrs. Carr to her own use, in the absence of a showing of property of that character to appropriate, is of no consequence. The rule is that matters of necessary inference from substantial facts are to be considered on demurrer, although they may be imperfectly or defectively pleaded. Malott v. Sample, 164 Ind. 645, 74 N. E. 245;Wagoner v. Wilson, 108 Ind. 210, 8 N. E. 925;Evansville, etc., R. R. Co. v. Darting, 6 Ind. App. 375, 33 N. E. 636. But the pleader is not entitled to have a substantial or ultimate fact inferred from a mere recital or conclusion in aid of a pleading thus challenged (Greenfield Gas Co. v. Trees, 165 Ind. 209, 75 N. E. 2;Indianapolis, etc., Transit Co. v. Foreman, 162 Ind. 85, 98, 69 N. E. 669;South Bend, etc., Plow Co. v. Cissne, 35 Ind. App. 373, 74 N. E. 282), and this we would be compelled to do if the pleader's statement in this paragraph in regard to personal property is to have any force. The law is well settled in this state that the title to lands upon the death of the owner intestate, immediately vests in the heirs of such deceased owner, subject to be divested should the personal estate prove insufficient to pay the debts of such decedent. Rountree, Adm'x, v. Pursell, 11 Ind. App. 522, 537, 39 N. E. 747;Humphries, Adm'r, v. Davis, 100 Ind. 369;Moore v. Moore, 155 Ind. 261, 264, 57 N. E. 242;Weakley v. Conradt, 56 Ind. 430. The pleading avers that appellee Carr is the sole heir of appellant's decedent. And, being the only heir, it follows that, at common law, and by force of the statute, nothing to the contrary appearing, she took the fee to the land. Rountree, Adm'x, v. Pursell, supra; Haugh v. Smelser, 31 Ind. App. 571, 66 N. E. 55, 506;Walker v. Diehl, 79 Ill. 473. The authority of an administrator to sell real estate to pay debts, in the absence of a testamentary provision to that effect, is statutory, and can be legally exercised only by order of court. Moore v. Moore, supra; First National Bank v. Hanna, 12 Ind. App. 240, 245, 39 N. E. 1054; Walker v. Diehl, supra. At common law, an administrator has no dominion over the real estate of his decedent for any purpose. But, by statute (section 2485 Burns' Ann....