32 Ind. App. 364 | Ind. Ct. App. | 1904
Suit by appellants for partition and to quiet title.
Error is .assigned upon the conclusions of law, upon a finding of facts substantially as follows: John Stern died intestate in the year 1852, the owner in fee of the northwest quarter of the southeast quarter and the northeast quarter of the southwest quarter of section thirty-five,township nineteen .north, range five east, and other lands, in all 115 acres, leaving as his only heirs his widow, Elizabeth Stern, and four children, William H. Stern, Elizabeth Wood, John Stern, Jr., and Eli Stern. Sixty acres, being thirty acres off of each forty acres,.were awarded to the widow, Elizabeth, as her dower interest in the whole 115 acres. Elizabeth Stern afterward, in the year 1864, married Charles O. Fry, who afterwards purchased the interests of the four children, entered into possession, and so continued until his death, claiming to be the sole owner, subject to the dower interest of Elizabeth. Charles O. Fry died intestate in IS68, leaving surviving him his widow, Elizabeth, she being a childless second-wife, and Albert Fry, William Fry, Isaac Fry, Abraham L. Fry, Oliver Fry, Melissa Shaffer, and Arena Wolf, his children by a former wife. Arena Wolf died intestate in 1894, leaving William Wolf as her only heir. On January 23, 1873, Andrew J. McKenzie, the duly appointed administrator of the estate of Charles O. Fry, deceased, filed in the court of common pleas his petition to sell the two forty-acre tracts above described, making defendants thereto the seven children of the decedent. Elizabeth Fry was not made a party. Afterwards, in the same month, the administrator filed an amended petition, alleging, among other things, that Fry died the owner in fee of the real estate, and that the two forty-acre tracts were “liable to be made
As conclusions of law, the court stated that appellants have no interest in the real estate, and that the appellees are the owners thereof.
At the time the sale of the real estate was made, the court might, upon a proper application, have authorized the administrator to sell any of the real estate of his decedent for the payment of the purchase money, or for the payment of any valid lien thereon. 2 R. S. 1852, §89, p. 269. And at that time the court of comomn pleas had no jurisdiction to order the sale of more than two-thirds of the lands of the decedent Ery for the payment of the claims of the general creditors. The statute in force at that time was as follows: “Section 17. If a husband die testate, or intestate, leaving a widow, one-third of his real estate shall descend to her in fee simple, free from all demands of creditors; • * * *” “Section 24. * * * Provided, that if a man marry a' second or other subsequent wife, and has, by her, no children, but has children alive, by a previous wife, the land which, at his death, descends to such wife, shall, at her death, descend to his children.” 1 R. S. 1852, pp. 250, 251.
Counsel for appellees argue that as the sale by the administrator was made while 'the courts were construing this statute as giving to the childless second wife only a life estate, and as appellants, as Ery’s children, received on distribution a part of the proceeds of such sale, that the sale was a valid sale of the fee, and that appellants are estopped from claiming any interest in the land. "What the different holdings of the- courts have been, as to the interest of a childless second wife, it is unnecessary to inquire at this time, in view of the ruling announced in Bell
In Bell v. Shaffer, supra, the petition was filed “for the sale of said real estate, to make assets for the payment of the general debts of said decedent.” The widow and children were made parties. The court’s order authorizing the sale was: “And the court finds that it is necessary to sell said real, estate of said decedent to pay the outstanding debts against said estate. And the court does now order and direct said administrator to sell the undivided two-thirds part in value of said real estate (being exclusive of the widow’s interest), to wit, lot number forty-four,” etc. In that case John D. Evans purchased the lot at the administrator’s sale, and, upon receiving a deed, took possession, which he held until his death, when his son,
So that, in the case at bar, as the court had authority',. Upon a proper showing, to order the sale of all the real estate to pay a claim for purchase money, and had no jurisdiction to order the sale of more than two-thirds of the land to pay the claim of general creditors, it is necessary to determine whether the petition and order to sell, as disclosed by the special findings, were.for the purpose of paying a claim for purchase money, or for the purpose of making assets generally.
It was the duty of the administrator to apply all the personal assets in his hands, if necessary, to pay liens on the land, “even to the exclusion of all general creditors.” And it was also his duty to apply the proceeds of the sale of two-thirds of the deceased husband’s land, if necessary, to that purpose. Hunsucker v. Smith, 49 Ind. 114; Morgan v. Sackett, 57 Ind. 580; Sparrow v. Kelso, 92 Ind. 514; Bowen v. Lingle, 119 Ind. 560; Shobe v. Brinson, 148 Ind. 285; Lewis v. Watkins, 150 Ind. 108; Denton v. Arnold, 151 Ind. 188.
The amended petition does not ask that the land be sold to make assets to pay the purchase money. It states that at his death Fry owed “nearly all the purchase money” for the land, and that since his death the administrator had paid about $900 on the purchase money, ánd that the land “was liable to be made assets for the payment of said debts,” that the administrator had paid about $900 on the purchase money, and that the debts at the time of filing the amended petition amounted to $800 or $900. We can not presume that the debts at the time of filing the petition were for purchase' money. It does not appear what amount of purchase money the decedent owed at the time of his death, and as the administrator has paid about $900 on this .purchase money, we can not presume, in aid of the petition, that anything was due for purchase money when the petition was filed. The amended petition shows that more than sufficient assets had come into the administrator’s hands to pay the purchase money. He had the right, under certain conditions, to pay the purchase money out of these assets. It must be presumed that he exercised this right legally. As against the widow’s right to her one-third of the land, it was his duty to pay the purchase money out of assets that came into his hands, to the exclusion of general creditors. It was not directly averred in the amended petition, nor is it necessarily to be inferred from the facts stated, that any part of the purchase money remained unpaid at the time of the filing of the petition. The statement in the petition that decedent died seized of
Neither did the court find that it was necessary to sell the land to pay unpaid purchase money, nor did it order it sold for that purpose. The court found that the material allegations of the amended petition were true, that the administrator had paid purchase money as the petition alleged, that the lands “were liable as assets for the payment of the debts” of the estate, and that “it was necessary to sell the land, as in the petition prayed for, for the payment of the debts against said decedent’s estate.” This can not be construed to be a finding that the lands “are liable as assets” for the payment of purchase money, but we think it must be construed as a finding that the land should be sold to make assets for the payment of claims of general creditors.
It is true the whole of the land was ordered sold, and in this the case differs from Bell v. Shaffer, 154 Ind. 413, where the order was for the sale of two-thirds only. But in that case it is expressly held that the court of common pleas “had no jurisdiction to order the sale of more than two-thirds of the lot to make assets for the payment of claims of general creditors.” "We think the petition and order to sell must be treated as an application to sell lands to pay debts generally. Eor such purpose the court has
Counsel for appellees cite the case of Myers v. Boyd, 144 Ind. 496, to the effect that the interpretation of this statute, from the decision in Martindale v. Martindale, 10 Ind. 566—decided at the May term, 1858—down to the decision in Utterback v. Terhune, 15 Ind. 363—decided in 1881—was that the childless second wife took a life estate only in an undivided third of her deceased husband’s lands, where he left children by a former wife. That case does so hold. And in that case the title in question was derived through an administrator’s sale. But in the quotation which wo have set out in another part of this opinion from the later case of Bell v. Shaffer, supra, where the title in question was derived through an administrator’s sale, it is declared that it has been the rule in this State since the decision in Louden v. James, 31 Ind 69, that such childless widow, by the terms of this statute, took a fee in an undivided third of her husband’s lands. While the later case of Bell v. Shaffer, supra, does not overrule nor cite the former case of Myers v. Boyd, supra, it must be held that the earlier case is overruled by the later case, and that the rule announced in Bell v. Shaffer, supra, is controlling.
Counsel for appellee also cite the eases of Byrum v. Henderson, 151 Ind. 102, Helt v. Helt, 152 Ind. 142, Thompson v. Henry, 153 Ind. 56, and Burget v. Merritt, 155 Ind. 143—each of which cases holds, as was held in Myers v. Boyd, supra, that prior to the decision in Utterbach v. Terhune, supra, and back to Martindale v. Martindale; supra, the court interpreted this statute as giving the childless second wife a life estate only.
As we have concluded this case is controlled upon this point by the case of Bell v. Shaffer, supra, it being a later
In Martindale v. Martindale, supra, the question arose in a suit for partition brought by a childless widow against the children of her husband by a former wife. In Louden v. James, supra, partition of the decedent’s real estate had been made between a' childless widow and the husband’s children by a former marriage, and an administrator de bonis non applied for an order to sell the land set apart to the widow to make assets to pay debts. In the former case it was a question between the widow and children, and it was held that as against the children, the widow took an estate in one-third for life only; and in the latter case it was a question between the widow and the husband’s creditors, and it was held that, as against creditors of the husband, the widow took one-third in fee. The two eases are not in conflict. Section 17, above set out, gives to the widow ojne-third in fee, free from all demands of creditors, and §24 directs that this interest which the widow takes free from demands of creditors shall, if she is a childless widow and there are children of her husband by a former marriage, descend to such children. In Louden v. James, supra, it is said that the case of Martindale v. Martindale, supra, is “simply deemed to settle the very question before the court, and nothing beyond.”
These two cases have been frequently cited, and sometimes, perhaps, without regard to the essential difference between them. In the cases of Haskett v. Maxey, 134 Ind. 182, Stephenson v. Boody, 139 Ind. 60, Byrum v. Henderson, supra, Thompson v. Henry, supra, Helt v. Helt, supra, and Burget v. Merritt, supra, each holds that the
Upon the question of estoppel: If we are right in the conclusion that the court had no jurisdiction to sell the widow’s one-third, the order of the court» directing the sale of the whole tract was inoperative and void as against the widow’s interest, and the money that was distributed to appellants was money derived from the estate of their father. If the receipt of the money now estops them from claiming this one-third, it must be because that act ratified the sale by the administrator. But it was not possible for appellants to object to the petition and order. They had no present estate when the sale was made, and had no estate until the widow’s death, long after this money was distributed to them by the administrator of their father’s estate. As it was not their land when the sale was made,, they could neither sell it nor ratify its sale. We think this same question is decided in appellant’s favor in Bell
As disclosed by the petition and order of sale, all the court of common pleas could authorize the administrator to sell was the interest of Charles O. Ery and the interest inherited from him by his children. The interest which accrued to the children on the death of Elizabeth Ery was a distinct and different interest. The administrator’s petition to sell presented no issue as to the children’s interest in this one-third, because at that time they had no interest. As against the children, she held, practically, only a life estate; but as against creditors, she held the fee, which, the statute directs, shall at her death descend to his children.
Judgment reversed, with instructions to restate the conclusions of law.