Weaver v. Gray

• Decision Date: 02 January 1906
• Docket Number: No. 5,480.,5,480.
• Citation: 37 Ind.App. 35,76 N.E. 795
• Parties: WEAVER v. GRAY.
• Court: Indiana Appellate Court

37 Ind.App. 35

76 N.E. 795

WEAVER

v.GRAY.

No. 5,480.

Appellate Court of Indiana, Division No. 2.

Jan. 2, 1906.

Appeal from Circuit Court, Decatur County; Francis T. Hood, Judge.

Exceptions by James Gray to the final report of Daniel W. Weaver, as administrator of the estate of Martha J. Gray, deceased. From a judgment sustaining the exceptions, the administrator appeals. Affirmed.

Ewing & Tremaine, for appellant. John F. Goddard, for appellee.

WILEY, J.

This action arose upon the appellee's amended exceptions to the appellant's final report as administrator of the estate of Martha J. Gray, deceased. During her lifetime the father of the decedent, Andrew Morris, in consideration of love and affection, conveyed to the deceased a tract of land, being in value less than $1,000. She died without issue, and her father and husband, the appellee, survived her. The only personal property that came into the hands of the administrator belonging to the decedent's estate, was of the value of only $6.60. She died owing some debts, and the administrator filed a petition to sell the real estate to raise assets with which to pay such debts. To this proceeding the appellee and the decedent's father were parties. The court found that the real estate was not susceptible of division in kind without injury, and ordered the whole tract to be sold, to which appellee consented.

In that proceeding the court made a special finding of facts, and stated its conclusions of law thereon. Among other things, it found that Andrew Morris, decedent's father, was entitled to receive two-thirds of the assets realized from such sale, subject to the debts of the decedent, and that the appellee, as the surviving husband, was entitled to receive one-third of such assets, and also $100 in value in payment of improvements which he made upon said real estate, and for which he held a lien. In its conclusions of law, the court stated that the appellee was the owner in fee simple of an undivided one-third of all of said real estate, as heir of his wife, subject to the lien of said Gray for $100 on all of the real estate; that upon the sale of the real estate, two-thirds of the proceeds thereof should be charged with the payment of two-thirds of the amount found to be due appellee for said improvements, and that after the payment of all of the debts the remaining two-thirds of the assets should be paid to Andrew Morris; that one-third of the amount due appellee for said improvements should be paid out of the other one-third of the proceeds of the sale, and that the residue of said one-third be paid to him as heir of the decedent. In his final report the administrator charged himself with the sum of $6.60, derived from the sale of personal property and the additional sum of $700, derived from the sale of the decedent's real estate, that being the amount for which the same sold. The total amount with which he charged himself was $706.60. In his current and final reports he showed disbursements for which he claimed and was allowed credits aggregating $380.44, which left in his hands at the time of the filing of his final report the sum of $326.16. In his final report, also, he showed to the court that the appellee was entitled to receive $6.60, being the entire amount of the personal estate, one-third of the purchase money of the real estate being $233.33, and $66.67 as his lien for the improvements made, making the entire amount due $306.60.

The report further represents that appellee was wholly insolvent and failed to pay the funeral expenses and the expenses of the last illness of his wife; that the administrator paid the same and afterward recovered a judgment against appellee “by way of subrogation for the sum so paid, amounting to- principal and interest-$158.50; that by reason of the insolvency of appellee this amount could not be reduced to assets; that the administrator retained said amount from the distributive share of appellee to satisfy that debt, leaving a balance due him of $148.10. To this report appellee filed exceptions. In the first of these exceptions appellee set up the finding of facts and conclusions of law in the proceeding by the administrator to sell real estate and the judgment ordering the sale thereof. It then set out the judgment against appellant for $147 and costs, and averred that said amount could not be set off against appellee's one-third interest in the sum derived from the sale of decedent's real estate. The same exception set up the householder's exemption statute and asked that appellee be relieved from the payment of such judgment. The trial court sustained appellee's exception as to his right to have paid to him the sum of $233.33, being the one-third of the amount realized by the sale of the real estate, and that he was entitled to claim the same as exempt by reason of his being a resident householder of the state. The court approved the report of the administrator in all other respects, and directed him to correct the same in the manner indicated.

It is unnecessary to refer to the other specifications of the exceptions, for the question involved in this appeal is fully presented by the first. That question, plainly stated, is this: Under the facts disclosed by the record was appellant authorized to retain out of the one-third of the funds realized by the sale of the real estate, belonging to appellee, a sum sufficient with which to pay and satisfy the judgment which he held against appellee? If one-third of the funds thus realized became assets of the estate of the decedent, the question would be of easy solution. In our judgment, however, the one-third of such funds, although it came into the possession of the administrator under the order of the court, directing the sale of the real estate, did not become, and could not under the statute become a part of the assets of the estate for distribution.

Section 2628, Burns' Ann. St. 1901, provides that: “An estate which shall have come to the intestate by gift or by conveyance in consideration of the love and affection, shall, if the intestate die without children or their descendents, revert to the donor, if living, at the intestate's death, saving to the widow or widower, however, his or her rights therein: Provided, that the husband or wife of such intestate shall hold a lien upon such property for the value, at the intestate's death, of all improvements by him or her thereon, and for all moneys derived from the separate estate of such husband or wife expended in making such improvements.” Section 2642, Burns' Ann. St. 1901, provides that: “If a wife die testate or intestate leaving a widower, one-third of her real...