175 Ind. 585 | Ind. | 1911
This appeal is taken from an interlocutory order of the Warren Circuit Court, authorizing, upon the petition of the administratrix of Jane Hawkins, deceased, the sale of certain lands, for the purpose of making assets for the payment of the debts and liabilities of said estate. The petition to sell was filed in the Benton Circuit Court on March 29, 1909.
The facts disclosed by the petition are that the decedent, Jane Hawkins, died on March 24, 1908, in Benton county, Indiana, and that Abigail H. Hart was, on February 9, 1909, by the clerk of the Benton Circuit Court, duly appointed administratrix of her estate, and' the proper letters of administration were issued to her. This appointment was confirmed by the Benton Circuit Court on March 22, 1909. Abigail H. Hart duly qualified as such administratrix, and assumed the duties of the trust. The heirs of the decedent, together with the LaFayette Loan and Trust Company, and other parties mentioned and named in the petition, were made parties defendant. The administratrix filed an inventory and appraisement of the real estate described in the complaint, showing that these lands were of the value of $43,925. She also filed an additional bond as required by the statute.
The petition to sell said real estate further alleged that said Jane Hawkins, at her death, left an instrument in writing purporting to be her last will and testament, which document was admitted to probate in the Benton Circuit Court on April 2, 1908; that an action to contest the validity of this will was commenced in the Benton Circuit Court, but subsequently was venued to the Warren Circuit Court, wherein by a judgment of said Warren Circuit Court, duly rendered on February 8, 1909, the will was set aside and declared to be null and void, and the probate thereof revoked; that in the action to contest the will, all the heirs of the decedent and all the beneficiaries under the pretended will, together with the LaFayette Loan and Trust Company, which was nominated in said will as the executor, were made parties and appeared. A duly certified copy of the judgment of the Warren Circuit Court, setting aside the will and revoking the probate thereof, was recorded in the records of wills in the office of the clerk of the Benton circuit court on February 9, 1909, and on that day, as previously shown, letters of administration on the estate of said Jane Hawkins were duly issued by the clerk of the Benton circuit court to Abigail H. Hart, who duly qualified, and has since been and is now acting as such administratrix.
The petition further alleged that decedent, Jane Hawkins, left surviving her as her only heirs at law, her daughters Abigail H. Hart, wife of George H. Hart, Elizabeth H. Bond, wife of John L. Bond, Minerva H. Ditton, wife of William V. Ditton, and Martha J. Jewell, wife of Charles W. Jewell, and her grandson James Hawkins.
It is further alleged that claims have been filed and allowed against the estate amounting to $38,000; that there is a note for $4,000, executed by decedent to said LaFayette Loan and Trust Company, which has not yet been filed against the estate; that the expenses of administration will probably amount to $1,000, and the taxes assessed against the property of decedent for the year 1908, and which were a lien against her real estate at the time of her death, are unpaid, and amount to $1,115.55.
It is further averred that on April 12, 1905, the decedent executed to the LaFayette Loan and Trust Company two bonds, one for $20,000 and the other for $2,500, payable five years after date, with interest at five per cent per annum,
The prayer is that upon the hearing of the petition an order be granted by the court empowering the administratrix to sell the real estate specifically described, or so much thereof as may be necessary to discharge the debts and liabilities of the estate.
The following errors are urged by appellants’ counsel for reversal of the order: (1) The insufficiency of the petition on demurrer; (2) sustaining demurrer of appellee administratrix to the second paragraph of appellants’ answer; (3) refusal of the lower court to stay proceedings on the order.
It appears that the adult defendants, as heirs, demurred to the petition, alleging, as ground for demurrers, insufficiency of facts. Other defendants who were minors, by their guardian ad litem, demurred to the petition on the same ground. The LaFayette Loan and Trust Company also separately demurred to the petition for want of facts. These demurrers were overruled and exceptions reserved. All the defendants then separately answered the petition by an answer in two paragraphs, the first being the general denial. These answers are virtually identical. The second paragraph alleges in substance, that the land described in the petition of the administratrix is of the probable value
It is further alleged that decedent left a will which, after her death, was probated in the Benton Circuit Court; that the defendants, other than the LaFayette Loan and Trust Company, were devisees under this will; that in an action contesting the will it was, by a judgment of the Warren Circuit Court, set aside and held to be null; that defendants have appealed from this judgment to the Supreme Court of Indiana, wherein said appeal is still pending. The prayer of the paragraph is that the lands be not sold, as prayed for in the petition.
A demurrer by the administratrix, for want of facts, to the second paragraph of these answers, was sustained.
Appellants’ counsel argue that the petition is not sufficient on demurrer, because (1) it does not show the amount of the personal property belonging to the estate; (2) it does not show the insufficiency of the personal property to pay the claims or liabilities of the estate; (3) the court erred in overruling the demurrers of the LaFayette Loan and Trust Company, and of the infant defendants to the complaint. Each of these demurrers, it is insisted, should have been sustained, for the additional reasons that neither the LaFayette Loan and Trust Company nor the infant defendants were necessary or proper parties defendant. Counsel further argue that, in respect to the sufficiency of the petition, under our statute concerning the settlement of the estate of a decedent, it is the claims against an estate which
It further shows that claims have been filed and allowed against the estate in the total amount of $38,000; that there is a claim against the estate, which has not been filed, in the sum of $4,000, evidenced by a note executed by decedent to the LaFayette Loan and Trust Company; that the expenses of administration will probably amount to $1,000,
The court finds under the evidence that it will be necessary to sell all the real estate described in the petition to make assets to pay the debts and liabilities of the estate. No evidence was introduced by appellants, on the hearing of the cause in the lower court, to meet or disprove any of the evidence introduced by the administratrix. It is fully established that after all the personal estate of decedent is exhausted, it will require all the proceeds derived from the sale of the real estate ordered sold in this action to pay the valid debts and liabilities of the estate.
We have examined all the questions presented, and find no error in the record. The order of the court is therefore affirmed.