79 Ind. 529 | Ind. | 1881
— This was a suit for the partition of certain real estate situate in Gibson county.
The complaint states that on or about the 16th day of June,
The appellees appeared and answered the complaint in two-paragraphs, the first being the general denial.
The second paragraph of the answer states that the appellees Ezekiel, Washington W., Estelle F. and Cornelia P. are' the children of one Fleming Farmer, who was, during his lifetime, the husband of said Louvicey Farmer; that, on the 20th day of February, 1866, the said Fleming Farmer, by his-
After making bequests to the amount of $505, Fleming Farmer disposes of his estate as follows:
“ Third. All the rest, residue and remainder of all my estate, both real and personal, I give, devise and bequeath to my beloved wife, Louvicey Farmer, for her sole use and benefit during her natural life, and at her death the same shall be equally divided between my children, Ezekiel Farmer, Estelle F. Farmer, Washington W. Farmer, and Cornelia P. Farmer; and if any of these children shall die, leaving a child or children, before the death of my said wife, then such child or children are to have all that part of the property left to iny wife which would go to the deceased if still living. And the further privilege is accorded to my wife, if she should choose so to do, to divide all of said property, or such part as she may choose, between the said children during her lifetime.”
The appellees, Ezekiel S. Farmer, Washington W. Farmer, Estelle F. Taylor and Cornelia P. Davis, also file a cross complaint, setting forth, substantially, the same facts alleged in the second paragraph of their answer, and insisting that they are the owners of the real estate described in the complaint, and that the appellants have no interest in the same.
The appellants demurred to the second paragraph of the answer, and to the cross complaint. The court overruled said demurrers. The appellants replied to the answer by a general denial, and answered the cross complaint also by a denial.
The cause was submitted to a jury for trial; a verdict returned for the appellees. The appellants moved for a new trial. The motion was overruled.
The errors assigned are, that the court erred in overruling the demurrer to the second paragraph of the answer, and in overruling the demurrer to the cross complaint, and, also, in overruling the motion for a new trial.
The simple fact that the cash payment was made to the tenant for life, and the securities for the balance taken in her name, will not justify the inference that the remaindex-men intended to give their interests in the land sold to the tenant for life. The proceeds of the sale will be regarded as the land itself, and as she was entitled to the possession of the land sold for life, so she would be entitled to the possession and use of the proceeds for life. It was proper, thex’efore, that the cash should be paid to her and the securities taken in her name.
Louvicey Farmer, as tenant for life, was entitled to the use of this fund as long as she lived, and as she had the legal title, by the will of her husband, to the land, the sale of which produced
No principle of equity is better settled than that where land is devised to a trustee for the use of one for life with remainder to another, it is the duty of the trustee to protect the rights of those in remainder as well as the interests of the tenant for life, and that, too, where the tenant for life is entitled to possession. It would seem logically to follow, that where equity impresses a trust upon the tenant for life in relation to the remainder-man’s interest, he can not lawfully do anything with the fund which may endanger or tend to impair it.
If, then, as is alleged in the answer, the fund produced by the sale of the land devised by Fleming Farmer to Mrs. Farmer for life, with remainder to the appellees, was by her invested in the real estate in controversy, to whom, in equity, did the real estate belong? The fund itself, not the use of the fund, is in the land. Mrs. Farmer did not, in equity, own the fund; its use for her life alone belonged to her. There is no question of identity in the case. The answer avers, and the demurrer admits, that the land in controversy was purchased with the precise securities taken for the sale of the land devised by Fleming Farmer to Louvicey Farmer for life with remainder to the appellees. Had this fund been kept intact by the tenant for life, it would at her death have vested equitably in the appellees, the tenants in remainder. It would seem to follow, that, upon the death of Mrs. Farmer, the land purchased with this fund, representing and standing for it and for the land which produced it, vested, equitably, in
“ Where the tenant for life takes both the legal and equitable •estate, the right of possession usually follows the title. But the tenant for life, in such case, is trustee for the remainder-men, and may be called to an account,” etc., and may be required in ;a proper case to give security for its safety.
Regarding the fund produced by the sale of the land devised by Fleming Farmer to his wife for life, with remainder f o his children, as money, she became trustee for the appellees, .■and, having invested the trust fund in the land in controversy, •the appellees may assert the same equitable right to the land ■which they could have asserted to the fund, had it not been invested. Cook v. Tullis, 18 Wall. 332; Horry v. Glover, 2 Hill Ch. 515.
It may be said, as it has been in one or two cases, that if •the remainder-man can take the land purchased with the fund, lie may receive a part of the benefit resulting from the use of ■the fund, by the tenant for life, to which he can have no .right. To this it may be satisfactorily answered, that, where fhe tenant for life voluntarily makes such an investment, he «ought not to be heard to say that the income of the land is more or less than the income of the fund. If more, he can not «complain; if less, he should not. By making the investment «she may reasonably be presumed to have agreed to accept the income of the land in lieu of the profits of the trust fund.
Upon the facts stated in the answer and in the cross complaint, we think the land in controversy may be regarded as «substituted for the land devised by Fleming Farmer to his wife for life, with remainder to the appellees. In the case •of Rapp v. Matthias, 35 Ind. 332, one Starris, a citizen of «Stark county, Ohio, devised all his estate, real and personal, fo his wife for life, with power to sell, giving what might remain unconsumed at his wife’s death, to his children. His executor sold his real estate, and with the proceeds purchased land in this State, in the name of the wife. Mrs. Starris, the
We think there was no error in overruling the demurrer to the second paragraph of the answer, nor in overruling the demurrer to the cross complaint. This disposes of all the questions raised, except that the verdict is not sustained by sufficient evidence.
The appellants insist that there was no evidence tending to show that Louvicey Farmer used any of the trust funds in purchasing the lots described in the complaint as situate in the town of Francisco. And in this we think the appellants; were right. We have looked through the testimony carefully,, and think that, fairly construed, it does not legally tend to show that the appellees had any interest in said lots, except what they inherited from Louvicey Farmer. True, one witness testified that Mrs. Farmer had nothing when she married Fleming Farmer. Another testified that she had nothing at his death, and another testified that she had no stock on the Brumfield farm; lived part of the time with her children, and lived well. But all the testimony showed that she was in the receipt of the income of a considerable estate from the death of her husband, in 1867; that Brumfield paid her interest to the amount of $1,600 on the debt with which the farm in controversy was purchased, and that she had the income of nearly $5,000, the residue of the personal estate of her deceased husband. The statements of the witnesses, as to her want of means at the time of her marriage and at the time of her husband’s death, do not tend to prove her pecuniary condition in 1873, when the lots in Francisco were conveyed to her. Nor-
Per Curiam. — It is ordered, upon the foregoing opinion, that the judgment below be reversed, at the costs of the appellees.