58 Ind. 169 | Ind. | 1877
The appellee, as plaintiff, sued the appellant, as defendant, in the court below, in and by the following complaint, to wit:
“Francis E. Barnes, plaintiff, complains of William Ferguson, defendant, and says, that on the 25th day of February, 1875, Elizabeth Ferguson, the mother of plaintiff and the wife of defendant, departed this life, intestate ; that said plaintiff, said defendant, and Alzura Deal, formerly Alzura Ferguson, daughter of said William and Elizabeth, are the only heirs at law of the said Elizabeth ; that said Elizabeth, at the time of her death, held a note for the sum of $188.00, and the interest thereon, against William H. Lawrence ; that said note represented the proceeds of certain real estate which said Elizabeth held as widow of John S. Barnes, the father of plaintiff and former husband of Elizabeth, who died seized of the same; that said real estate was sold by said Elizabeth, during her marriage with said defendant; that, since the
The appellant demurred to this complaint, for the want of sufficient fa&ls therein to constitute a cause of action, which demudre» was overruled by the court below, and to this decisiondthte appellant excepted.
The appellant then answered, in three paragraphs, the appellee’s complaint, as follows:
1. A general denial.
2. In the second paragraph, the appellant alleged, in substance, that he received from said William H. Lawrence, on his note, mentioned in said complaint, the sum of one hundred and nineteen dollars, and no more, and-that the said sum was so received by him after the -death of his wife, the said Elizabeth Eerguson; that, on the day of the death of his said wife, she requested and directed appellant to procure from said Lawrence said money, and use the same in paying the expenses of her last sickness, and her funeral and burial expenses ; and that the appellant procured said money from said Lawrence in compliance with the request of his said wife,- and wholly expended the same in paying said expenses of her last sickness, funeral and burial.
3. In the third paragraph of his answer, the appellant said, in substance, that he collected from said William H.
The appellee demurred to the second and third paragraphs of said answer, for the want of sufficient facts in each paragraph to constitute a defence to this action, which demurrers were sustained as to the second, and overruled as to the third, paragraph of said answer, and to the former' decision the appellant excepted. And the appellee replied, by a general denial, to the third paragraph of answer. And the action, being at issue, was tried by the court below, and a finding made that there was due the appellee, “ for the benefit of the estate of Elizabeth Ferguson,” from the appellant, the sum of one hundred and twenty-six dollars and seventy cents. And the appellant’s written motion for a new trial having been overruled, and his exception saved to such decision, judgment was rendered by the court below, in accordance with its said finding, for the benefit of the heirs or administrator of Elizabeth Ferguson.
The appellant has assigned as errors, in this court, the following decisions of the court below:
1st. In sustaining the appellee’s demurrer to the second paragraph of the appellant’s answer;
3d. In overruling his motion for a new trial; and,
4th. In overruling his demurrer to the appellee’s complaint.
The second error assigned was simply a cause for a new trial, and it was, therefore,, improperly assigned in this court as an independent error. ¥e do not set it out, because it presents no question for our consideration.
¥e will first consider the question, presented by the
The question for our consideration, as it seems to us, is this: Are the averments of the complaint sufficient to show that the appellee, when his action was commenced, by reason of the matters stated, had a personal demand, in his own right, against the appellant, as such executor, for the money mentioned in the complaint, or any part thereof?
It is conceded on the face of the complaint, that the appellee was not the only heir at law of Elizabeth Eerguson deceased, but that the appellant and one Alzura Deal were co-heirs with the appellee of said decedent, and, of course, equally interested with him in the money mentioned in said complaint. It can not be claimed, therefore, we think, that the appellee has sued in this action for the benefit of himself and his co-heirs, of whom the defendant, the appellant in this court, is one; but the action must be regarded, as the complaint shows it is, as the personal action of the appellee for the. recovery of his share only of the decedent’s estate.
Regarding the action in this light, and it can not be regarded otherwise, it seems very clear to us that the appellee’s complaint did not state facts sufficient to constitute a cause of action in his favor, against the appellant, in this, that the complaint did not state that there were no debts nor claims outstanding against said decedent’s estate. Indeed, it seems to us that in any view of this case it was necessary that the appellee should have averred, in his complaint, that there were no debts nor claims outstanding against said decedent’s estate. Without such an averment, the appellee could not maintain a personal action for the recovery of his share of the decedent’s estate ; for, if there were unsatisfied debts or claims against
In the case of Leach v. Prebster, 35 Ind. 415, it was held by this court, that an executor of a decedent might, under the statute cited, maintain an action against an executor de son tort. And so, also, an executor of his own wrong might be sued by the administrator of the decedent; for, “After the administration is granted, the power of an administrator is equal to, and with, the power of an executor.” 2 Williams Executors, 6th Am. ed., p. 925.
The executor or administrator of a decedent is certainly “interested in the estate of the decedent,” and, it seems to us, is a proper person to sue an executor de son tort.
Our statute provides, that such an executor may be sued by a creditor of the decedent; but, in the case of Wilson v. Davis, 37 Ind. 141, it was intimated by this court, and we think correctly, that where a creditor sues he should sue for himself and all other creditors of the decedent.
We have'found no case, however, in which it has been held that the heir at law or next of kin, as such, of a decedent could maintain an action against an executor of his own wrong. The contrary doctrine was laid down by
This is in accordance with the general doctrine, that the executor or administrator of a decedent can alone sue for and recover the personal property of the decedent, at the time of his death. This general doctrine is the recognized law of this State, with a single exception, viz.: It has been held by this court, in several cases, that where a person dies intestate, leaving no debts to be paid, and there is no administration of his estate, the heirs at law of such person may sue for a debt owing to such decedent at the time of his death.
In the recent case of Schneider v. Piessner, 54 Ind. 524, in which the previous decisions of this court on this subject are cited, it was held, that, “ where the heirs of the creditor sue for the debt, the complaint should aver every fact necessary to give them a right of action and to •recover the money. * * * The complaint must show by its averments that the heirs suing are entitled to the money. It is upon this ground that it is necessary to allege the non-existence of debts.”
Following in the line of. these authorities, we think it is clear, that the appellee should have averred in his complaint every fact necessary to show that he was entitled to the money sued for, or some part thereof. For the want of such necessary averment, as we have heretofore mentioned, we hold that the appellee’s complaint did not state facts sufficient to constitute a cause of action, in his favor, against the appellant, as an executor de son tort.
As the other questions presented by the record may not arise on another trial, we need not now consider or decide them.
The judgment of the court below is reversed, and the cause is remanded with instructions to sustain the demurrer to the complaint.