Wilson v. Boone

• Decision Date: 06 January 1894
• Docket Number: 17,003
• Citation: 35 N.E. 1096,136 Ind. 142
• Parties: Wilson v. Boone, Administrator, et al
• Court: Indiana Supreme Court

35 N.E. 1096

136 Ind. 142

Wilson v. Boone, Administrator, et al

No. 17,003

Supreme Court of Indiana

January 6, 1894

From the Hamilton Circuit Court.

The judgment is reversed, and the cause remanded, with instructions to sustain the demurrer to the complaint.

W Booth, for appellant.

G Shirts and I. A. Kilbourne, for appellees.

OPINION

McCabe, J.

A demurrer was overruled to the complaint of the appellee Boone, as administrator of David Wilson, deceased, against appellant, who was the widow, and the heirs of the decedent to subject certain lands to sale to make assets to pay debts of the estate. Issue, trial by the court, special finding and conclusions of law, upon which judgment was rendered in favor of the administrator.

The assignment of errors questions the ruling on the demurrer and the conclusions of law.

The complaint reads as follows:

"The petitioner, James W. Boone, would respectfully show to the court that he is the duly appointed and acting administrator of the estate of David Wilson, who departed this life at said county intestate; that during his lifetime the said David Wilson was the owner in fee simple of certain lands in the county, which are described. And your petitioner further shows that during his lifetime, to wit, on the 19th day of January, 1889, the said David Wilson and his wife, the defendant Phebe Wilson, executed a mortgage upon the whole of the aforesaid real estate to T. C. Day & Co., securing the payment of $ 2,000 for money loaned to said Wilson, which said mortgage and the interest thereon are wholly unpaid. After the execution of said mortgage, to wit, on the 19th day of January, 1889, said David Wilson, by warranty deed, conveyed said one hundred and twenty acres of real estate to his wife, the said Phebe Wilson, and afterwards, to wit: On the 16th day of February, 1889, the said David and his said wife, Phebe, joined in a deed for said thirty acre tract of land to the said Ella Gatewood. In order to induce the said Phebe to sign the deed for said thirty acres of land to the said Ella Gatewood, the said David Wilson then sold her, the said Phebe, all of the personal property owned by the said David Wilson. Afterwards one Thomas Bennett brought suit in this court to set aside the conveyance so made by the said David Wilson to the said Phebe, and such proceedings were had in said cause that in this court said plaintiff recovered judgment setting aside the said conveyance as having been fraudulently made, and from that judgment an appeal was taken to the Supreme Court of Indiana. Pending said appeal, the said David Wilson died intestate as aforesaid, leaving as his only heirs the defendants in this action, to wit, his widow, the said Phebe and then follows the names of the other heirs, the appellees.

"After the death of said David Wilson, and pending the appeal of said cause to the said Supreme Court, the said Phebe Wilson Tillie Cook, Ella Gatewood, and Samuel Nickleson, the father of the Nickleson children, entered into a written agreement wherein the said parties agreed to pay to the said Phebe Wilson, as widow of said David Wilson, the sum of six hundred dollars in cash, or in good sale notes taken by the administrator at the sale of personal property, which said administrator was then authorized to do; and they, said heirs, further agreed to pay the debts which had been contracted by said widow, or liabilities in any way growing out of her possession and management of the real estate above herein described and the expenses of said Bennett suit, and further agreed that certain provisions and canned fruit on hand should be turned over to the said widow, to wit, four hams, two sides, eight gallons of lard, and all canned fruit. And upon the entire fulfillment of said stipulations, the said widow agreed to convey said lands, to wit, the said farm formerly owned by said decedent, to said heirs, and renounce all her claim thereto, but that on failure to comply with the same the said widow had the right to retake possession of said farm; but upon full compliance therewith said widow agreed to accept the same in full of all her rights in said lands, and also as widow of said decedent. Pursuant to said agreement the plaintiff was, by the consent of said parties, appointed as administrator, and proceeded to sell said property, much of which consisted, as aforesaid, of that part thereof claimed to have been sold and transferred by the said David Wilson to his said wife for the consideration aforesaid, and took notes...