46 Ind. App. 416 | Ind. Ct. App. | 1910
Appellant, as administrator of the estate of Louisa Wolfe, deceased, filed his verified petition in the court below, alleging that no personal property of said estate had come to his knowledge or possession; that there was due from said decedent, on a judgment rendered in the Orange Circuit Court in favor, of John Maris, deceased, against said Louisa Wolfe in her lifetime, the sum of $219.-27, which was a lien on any real estate she may have owned at her death, that the costs of administration would amount to $95; and that decedent died the owner of an interest in certain real estate. Said administrator asked that an order be given empowering him to sell the real estate described.
Defendants filed an answer in general denial and an answer of payment of the judgment, for the satisfaction of which the land was sought to be sold. To the plea of payment, the administrator replied by general denial.
The court made a special finding of facts and stated conclusions of law thereon in favor of appellees. Appellant took exception to each conclusion of law. A motion for a new trial, stating, among other reasons, that the decision of the court was contrary to law, was overruled and judgment rendered against appellant for costs.
The errors, assigned question the correctness of the conclusions of law and the action of the court in overruling appellant’s motion for a new trial.
In substance, the court found that Louisa Wolfe died in Orange county, Indiana, intestate, on May 28, 1902, leaving certain heirs, naming them; that plaintiff is the qualified and acting administrator of the estate of Louisa Wolfe, deceased; that on April 11, 1899, John Maris, now deceased, recovered judgment in the Orange Circuit Court against Louisa Wolfe and another in the sum of $149.50; that said judgment was recorded; that no entry of payment or satisfaction of said judgment appears among the records or files of said court; that, since the date of said judgment, John Maris died, and plaintiff is administrator of his estate; that no part of said judgment has been paid to said Aaron Maris, administrator of the estate of John Maris, deceased; that Louisa Wolfe was the wife of Peter Wolfe, deceased, who prior to his death made and executed his will; that said Louisa Wolfe at her death owned no personal property; that said Peter Wolfe, at his death, was the owner in fee of the real estate described in the complaint.
Upon the facts found, the court, as its conclusions of law, stated (1) that neither Minnie Wolfe nor her - child, Charles Wolfe, at the time of death owned any portion of the real estate devised by the will of said Peter Wolfe; (2) that said Louisa Wolfe, by virtue of said will, was given only a life estate in and to the real estate described in said petition, that plaintiff is not entitled to an order for the sale of said real estate, or any part thereof, to make assets for the payment of the claim against the estate of Louisa Wolfe,
The controlling question presented is, What interest did appellant’s decedent Louisa Wolfe have in the real estate? If the widow took a fee in the real estate devised, the judgment should be reversed, otherwise, affirmed.
Item one of the will reads:
4. “It is my will and desire that my wife, Louisa Wolfe, do have and hold, for her own benefit, one-third in value of all my real estate of which I may be the owner at my death.”
Item two devises and directs that the wife have for her own benefit one-third part in value of the personal property that may be left after paying all of the testator’s just debts of every description. Item three provides that the remainder of testator’s real estate and personal property, that may remain after paying his just debts and the bequest before made to his wife, shall be divided share and share alike between his children. By item four the wife is given the cai»¿> and custody of the minor children so long as she remains testator’s widow, and the management of the property devised to his children. Item five provides that no distribution during the lifetime or widowhood of the widow shall be made.
Judgment reversed, with instructions to restate conclusions of law to render judgment in favor of appellant.