Umbstead v. Preachers' Aid Soc. of Northwest Indiana Conference of Methodist Episcopal Church

• Decision Date: 29 December 1944
• Docket Number: No. 28039.,28039.
• Parties: UMBSTEAD et al. v. PREACHERS' AID SOC. OF NORTHWEST INDIANA CONFERENCE OF METHODIST EPISCOPAL CHURCH.
• Court: Indiana Supreme Court

223 Ind. 96
58 N.E.2d 441

UMBSTEAD et al.
v.
PREACHERS' AID SOC. OF NORTHWEST INDIANA CONFERENCE OF METHODIST EPISCOPAL CHURCH.

No. 28039.

Supreme Court of Indiana.

Dec. 29, 1944.

Action by Gusta Umbstead and others, as residuary devisees, against Preachers' Aid Society of the Northwest Indiana Conference of the Methodist Episcopal Church to set aside certain deeds and to cancel certain notes and after death bonds executed by plaintiffs' decedent prior to her death. Judgment for defendant, and plaintiffs appeal.

Transferred from Appellate Court under § 4-209, Burns' Ann.St.

Affirmed.

[58 N.E.2d 442]

Appeal from Benton Circuit Court; R. R. Cummings, Special judge.
George F. Stevens, of Plymouth, and Ernest M. Hawkins, of Fowler, for appellants.

Stuart, Devol, Branigin & Ball, of Lafayette, and Snyder & Jacobs, of Fowler, for appellee.

O'MALLEY, Chief Justice.

The appellants, residuary legatees and devisees of Nora E. Johnson, deceased, instituted this action to set aside deeds conveying real estate, and to cancel notes and after death bonds, all of which were executed by the appellants' decedent prior to her death. The appellants also sought to recover money turned over to an alleged agent of appellee by the decedent.

The complaint was in four paragraphs. The first paragraph sought to quiet title to the real estate conveyed by the deeds referred to above. The second, third and fourth paragraphs of complaint alleged that the plaintiffs were cousins of the decedent and residuary legatees and devisees named in her last will and testament. It is further alleged that letters testamentary had been issued and that the assets in the hands of the executor were sufficient to pay all debts and legacies; that Chalmer C. Harold was the agent of appellee and the pastor of the church attended by the decedent; that decedent reposed trust and confidence in her pastor and that he, by and through his position, unduly influenced the decedent in favor of the appellee; that appellee took advantage of the relationship so existing and thus secured title to the real estate in question, together with after death bonds or promises to pay large amounts of money, and that appellee was likewise responsible for $4,000 which had been turned over to its agent, Chalmer C. Harold; that there was no consideration for the transfers of real estate, the promises to pay and the payment of the $4,000.

The trial was by the court and, by request, the court found the facts specially. The conclusions of law followed the finding, and judgment was for the defendant, appellee herein.

On the morning of the trial, the appellants offered to file an amended complaint making the executor a party. The court refused the permission requested. While it may be that the court considered the offer as coming too late, that question is neither raised nor briefed. The appellants, as residuary devisees named in decedent's will, were the proper parties to maintain the action to set aside deeds secured by fraud or undue influence, since the personal property was sufficient to pay debts and legacies. Reed, Adm'r v. Brown, 1939, 215 Ind. 417, 19 N.E.2d 1015.

In the instant case the complaint alleged that the personal property was sufficient to pay all debts and legacies; there was no claim that the real estate was devised to the executor so as to give him control thereof; and no statute is pointed out that confers on the executor any interest in or control over the lands of the decedent.

The personal property of the decedent descended to the personal representative, and as to such property any right of action was exclusively in the executor...