158 Ind. 287 | Ind. | 1902
Appellees brought this action against appellants to recover their share of the purchase money for real estate conveyed to appellants by John Richardson and wife. The cause was tried by a jury, and a verdict returned in favor of appellees, and over a motion for a new trial judgment was rendered against appellants.
The errors assigned and not waived call in question the sufficiency of the complaint and the action of the court in overruling appellants’ motion for a new trial. Appellants concede that the paragraphs are substantially the same, except that the second paragraph seeks to enforce a vendor’s lien against the real estate sold and conveyed to appellants by Richardson and wife. Under this concession, we will consider the sufficiency of the second paragraph only.
It is alleged in the second paragraph that in 1872 John Richardson and Ruth, his wife, sold and conveyed forty-five acres of land in Madison county to appellants John M. Jester and Emeline Jester, his wife, for the sum of $2,500; that afterwards said Richardson and wife sold and conveyed to appellant John M. Jester thirty-five acres of land in said county for $1,500; that it was agreed that no part of the purchase money for said land should be paid until after the death of the grantors, and said purchase money was to draw interest at the rate of six per cent, per annum until paid. In 1888 said Richardson died testate in Madison county, Indiana. Said will was duly admitted to probate in said county. By the terms of his will he gave his
The first objection to the complaint is that it is insufficient, for the reason that the will of John Richardson was
It' is next claimed by appellants that under no circumstances can appellees, as legatees under the will of'John Richardson, sue and recover from them what they may owe the estate of said John Richardson for the unpaid purchase
The estate of John Richardson, willed to his widow during her life, and not disposed of for her comfortable support at her death, remained a part of the estate of John Richardson, and was to be distributed to his residuary legatees under his will. Her administrator had no authority or control over the same. At the time this action was commenced there were no debts against the estate of John Richardson; nor was there any administrator, executor, creditor, legatee, widow, or other person, except appellees, entitled to recover any of said purchase money. This brings the case clearly within the rule declared in Magel v. Milligan, 150 Ind. 582, 585, 586, 65 Am. St. 382. See, also, Jewell v. Gaylor, 157 Ind. 188; Robertson v. Robertson, 120 Ind. 333; 18 Am. & Eng. Ency. of Law (2nd ed.), 800, 801. In Holland v. Holland, 131 Ind. 196, 199, cited
It is insisted that the damages assessed were excessive, and that the. verdict is not sustained by sufficient evidence, and is contrary to law. After a careful examination of the evidence we can not say that either of said causes for a new trial is sustained by the record.
Einding no available error in the record, the judgment is affirmed.