149 Ind. 41 | Ind. | 1897
Tlie appellant sued the appellees to recover a judgment for $457.00, and to enforce a lien upon real estate to pay such judgment. The circuit court sustained a demurrer to the complaint for want of sufficient facts to constitute a cause of action, and, the plaintiff declining to amend or plead further, the trial court rendered judgment that plaintiff take nothing by her suit. The ruling upon the demurrer is assigned as the only error complained of.
The Substance of the complaint is that the defend
It is very clear, from the previous decisions of this court, that the complaint is sufficient to show that the will made the support, maintenance, and funeral expenses of George W. Marlow a charge and a lien upon the real estate devised. Nash v. Taylor, 83 Ind. 347, and cases there cited; Davidson v. Coon, 125 Ind. 497, and cases there cited.
It is first contended by the appellees’ learnéd counsel, that the complaint is insufficient because it alleges no demand upon the defendants to pay the claim sued for, nor any demand by the decedent in his lifetime for
The principal question involved is whether the appellant, the plaintiff, can be subrogated to the fights of George W. Marlow, deceased, under the terms of the will. It is, in effect, insisted by the appellees, in support of the ruling complained of, that appellant cannot be so subrogated unless George W. Marlow demanded a support from the executorof theChambers will, and a sale of the real estate by him charged, in order to furnish such support, and that the executor refused to furnish such support or make such sale. But we have seen no such demand was necessary during the continuance in office of the executor, and certainly none was necessary after his discharge. And we have also seen that no such demand would be necessary on the appellees, the beneficiaries in the devise, even if they were adults, and surely no such demand on them could be required on account of their infancy. Counsel for the appellees cite only two cases in support of the ruling below, that the appellant can not be subrogated to the rights of George W. Marlow in his lifetime, namely: Huffmond v. Bence, Admr., 128 Ind. 131, and Halstead v. Westervelt, 41 N. J. Eq. 100, 3 Atl. 270.
We have examined the cases, and find our own case not only does not support the contention that appellant cannot be subrogated, but that it is an authority that she can be subrogated to the rights held by George W. Marlow in his lifetime. In that case it appears that Rudisill and wife conveyed to their
The New Jersey case is not a very clearly reported one, but, even if it should be against the doctrine laid down in our own case, so long as that case stands and is not overruled, we are required to follow it. Our conclusion, therefore, must be that the complaint stated a good cause of action, and that the trial court erred in sustaining the demurrer thereto. The judgment is reversed, and the cause remanded, with instructions to overrule the demurrer to the complaint, and for further proceedings not inconsistent with this opinion.