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

• Decision Date: 29 December 1944
• Docket Number: 28039.
• Citation: 58 N.E.2d 441,223 Ind. 96
• Parties: UMBSTEAD et al. v. PREACHERS' AID SOC. OF NORTHWEST INDIANA CONFERENCE OF METHODIST EPISCOPAL CHURCH.
• Court: Indiana Supreme Court

58 N.E.2d 441

223 Ind. 96

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

No. 28039.

Supreme Court of Indiana

December 29, 1944

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 &amp 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 during the pendency of the estate. Baker v. State Bank of Akron, 1943, 112 Ind.App. 612, 44 N.E.2d 257. The court did not err in denying appellants' motion to file an amended complaint making the executor a party.

Although complaint is made of the action of the court in refusing to permit the executor to become a party on his own motion, that action is not questioned by the executor, and the appellants cannot complain of an adverse action affecting another party. Johnson, Adm'r, v. Johnson, 1901, 156 Ind. 592, 60 N.E. 451; Wiley, Trustee, v. Coovert, 1891, 127 Ind. 559, 27 N.E. 173.

The appellants further complain that the appellee had no authority by agreement to take title to the real estate in return for a promise to pay specific sums yearly to the decedent during her lifetime. The amount named in the contract was fully paid to the decedent, and we are therefore confronted with a contract completely executed on both sides. Under such circumstances neither side can complain that the contract was beyond the power of the appellee to make. Seamless, etc., Mfg. Co. v. Monroe, 1914, 57 Ind.App. 136, 143, 106 N.E. 538, 541.

The claimed errors, in striking affidavits from the motion for a new trial, in the misconduct of the judge and in refusing to approve special bill of exceptions No. 2, may be considered together, since the affidavits were the appellants' effort to present to the court the claimed misconduct of the trial judge. The special bill of exceptions No. 2 was a brief by appellants on that subject, together with remarks claimed to have been made by the special judge at the time the motion for a new trial was overruled.

It has been held that the motion for a new trial cannot perform the functions of a 'bill of exceptions'. An affidavit such as we have here in support of a motion for a new trial must be brought in by way of a bill of exceptions. Drake v. Drake, Adm'x, 1917, 66 Ind.App. 85, 88, 117 N.E. 871, 872; Hood v. Tyner, 1891, 3 Ind.App. 51, 28 N.E. 1033.

Here there was a bill of exceptions filed which contains the stricken affidavits, and the striking, if error, was harmless. An examination of these affidavits discloses that the misconduct of the judge, about which complaint is made took place immediately after the testimony of Chalmer C. Harold had been given. He was the first witness on the first day of a trial lasting five days. The action complained of was taken with the express consent of counsel for both sides. It consisted of conversations between the judge and the witness Harold, out of the presence of the attorneys. No complaint or criticism of the misconduct was made during the trial, and in fact none was contemplated. The appellants in their brief say that after the court made its finding and announced its conclusions, they began to examine the proceedings, and from the finding against them, the ruling on the admission of evidence, and from the misconduct of the judge, they concluded that the court was not fair and impartial, although they state that he gave due attention to their evidence, their arguments and their citation of authorities. They rest their case upon four authorities, to-wit: Danes et al. v. Pearson, 1893, 6 Ind.App. 465, 33 N.E. 976; Meier v. Claymeier, 1915, 183 Ind. 268, 108 N.E. 945; Allen v. Allen, 1931, 132 Kan. 468, 295 P. 705, 73 A.L.R. 1006; Rosenfield v....