58 Ind. App. 592 | Ind. Ct. App. | 1915
Appellants brought this action to recover damages ,for an alleged trespass upon certain real estate in Monroe County, Indiana, by unlawfully entering upon and constructing a railroad thereon. Judgment was rendered in favor of appellee on the pleadings, and the errors assigned and relied on for reversal are as follows: Overruling appellants’ demurrers to the second and third paragraphs of appellee’s answer, and sustaining appellee’s demurrers to the first and second paragraph of reply.
Only one question is raised by each of the rulings complained of and that involves the construction and effect of items Nos. 2 and 3 of the will of Benjamin Headley, deceased, copies of which are set out with each paragraph of the answer and are as follows:
“2d. I bequeath to my beloved wife, Eunice Headley, in lieu of her legal interest therein all my personal property and real estate during her natural life, to dispose of the personal property to the best interests of the estate, and to manage said personal property and said real estate to the best interest of the estate, and if necessary for the best interest of her and of my legal heirs to sell and convey said real estate. 3d. I bequeath at the death of my wife all my personal property and real estate to my legal heirs, to be equally divided between them, a note given me by my son James to be deducted from his share, excepting his one-ninth share of said note.” (Our italics.)
Each of said paragraphs of answer avers that Benjamin Headley died the owner of the land described in the complaint, over and upon which appellee has constructed its
The objections urged to the sufficiency of each paragraph of ansAver is that Eunice Headley, the Avidow, had only a life estate in the real estate and under the will of Benjamin Headley, deceased, could only sell and convey the same, “if necessary for the best interest of her and of” the other beneficiaries of the will; that it is not averred that the sale was necessary for the purposes aforesaid, and that Avithout such allegation the demurrers to each paragraph of the answer should have been sustained. In each paragraph of reply the facts of the answer are admitted, except the adequacy of the consideration and the consent of appellants. It is sought to avoid the effect of the answer by averring in substance that appellants did not give their consent to the sale of the land or the construction of the railroad thereon, and that the sale was for an inadequate consideration and was not necessary for the best interests of Eunice Headley or appellants; that the grantor did not procure an order of court authorizing the sale and that she only conveyed to appellee her life estate.
The theory of the complaint is that appellee only obtained a life estate in the land conveyed to it and that the entrance
It is averred in the answer that appellee paid $495.45 for 6.58 acres of farm land and that such price was a fair and reasonable consideration therefor. The averment in the special paragraphs. of reply that the price paid for the land was inadequate only amounts to an argumentative denial of the averments of the answer on the subject. The gist of the other averments is that appellants did not give their consent to the sale or the entrance upon the land by appellee; that the sale was not for the best interests of Eunice Headley or appellants, and was not authorized by an order of court duly procured. Under the rules above announced, these averments are insufficient to avoid the special answers, for it was not necessary for Eunice Headley to obtain appellants’ consent to sell the land nor, to procure an order of court authorizing the sale, since by her husband’s will she was given the power to convey the fee simple, and her conveyance thereof by warranty deed for a fair and reasonable consideration as alleged in the answer was a valid and authorized exercise of the power of sale so conferred on her.
For these reasons the court did not err in sustaining the demurrers to the special paragraphs of reply. Judgment affirmed..
Note.—Reported in 108 N. E. 593. As to rights and remedies of tenants of life estates, see 14 .Am. St. 628. ' Estate created by grant or devise of life estate with absolute power of disposition, see Ann. Cas. 1912 B 424. See, also, under (1) 16 Cyc. 637; 31 Cyc. 1115; (2) 31 Cyc. 1133, 1134.