127 Ind. 576 | Ind. | 1891
The plaintiff John C. New first filed his complaint, on January 21, 1886, against George W. New and Adelia New, his wife, W, Clinton Thompson and Mary C. Thompson, his wife, Casper Carter, Frank New, and Elizabeth New.
The substantial averments of this paragraph are as follows:
That on the 20th day of December, 1877, the defendant George ~W. New executed to the plaintiff his note for $1,-700.00, due three months after date; that said note, remaining unpaid on the 28th day of December, 1882, the plaintiff sued thereon in this court, and in said action recovered a judgment, on the 20th day of December, 1877, for $2,200.00, which remains unpaid, and on which judgment execution has been returned nulla bona; that on the — day of January, 187-, John B. New died testate, at said county, the owner in fee simple of the south half of lot two (2), in block forty-seven (47), in the city of Indianapolis, Indiana, and of a large amount of personal property, and that on the — day of January, 1872, said will was duly admitted to probate in said county ; that by the terms of said will he bequeathed “ the whole of his estate to Maria New, his wife, to have, hold, and use the same during her natural life, and at her death saifl will provided that whatever remained should be
On the 7th day of June, 1886, the plaintiff filed two additional paragraphs of complaint, the second paragraph averring the same facts regarding the will and estate of John B. New and the conveyances of George W. New to defendant Mary Thompson of his one-third part of the real estate of which John B. New died seized, averred the settlement of the estate of John B. New, and the judgment of $4,813.08, and adds the additional averment that after such conveyance to her the said defendants Mary Thompson, and W. Clinton Thompson, her husband, conveyed the same to the defendant, Adelia New, without consideration.
The third paragraph avers the recovery of the judgment on the note mentioned in the first paragraph of the complaint executed by George W. New to the plaintiff, that it is unpaid, the conveyance of certain other property to the defendant Caspar Carter, by defendant George W. New, without consideration, and to defraud his creditors, and that all the defendants claim some interest in the said real estate so conveyed.
Each paragraph charged the insolvency of defendant George W. New, and prays for setting aside the deeds of conveyance named therein, and asks that the real estate be sold to pay plaintiff’s debts, etc.
The defendants Adelia New and Frank New each filed
The plaintiff demurred to the second paragraph of answer for want of facts, which was sustained and exceptions to the ruling noted.
Adelia New filed a separate answer, setting forth that, 'as to said real estate of which John B. New died seized, the plaintiff was estopped to prosecute this suit for the reason that before the bringing of the suit the plaintiff had conveyed the same by warranty deed, for a valuable consideration, to one Harry S. New, who, before the commencement of this suit, conveyed the same for value by warranty deed to Elizabeth New, who claims title to the same by virtue of said several conveyances, and that by reason thereof the plaintiff is estopped from subjecting said real estate to the payment of said judgment of. the plaintiff against the said defendant, George W. New. To this paragraph of answer plaintiff replied in denial.
The defendant Adelia New filed a cross-complaint against the plaintiff, in which she averred that on the 28th day of February, 1880,she became the owner, by purchase, for a valuable consideration, from the defendant George W. New, of his undivided one-third interest in the south half of lot two (2), in block forty-seven (47), in the city of Indianapolis, and is still the absolute owner in fee thereof; that on the 15th day of April, 1876, the First National Bank of Indianapolis, Indiana, recovered judgment against the defendant George W. New, and others, in this court, for $2,148 and
The plaintiff demurred to the cross-complaint, which was overruled, and plaintiff answered in two paragraphs. The first a general denial. The second paragraph averred, so far as relates to the south half of lot two (2), in block forty-seven (47), in the city of Indianapolis, that the same was the property of the estate of John B. New, and that the conveyance to the plaintiff was without consideration, and for the purpose of defrauding creditors of George W. New, and that cross-complainant had full knowledge that her husband, George W. New, had received a large amount of said estate in excess of his share. That cross-complainant demurred to the second paragraph of answer to her cross-complaint which was overruled, and she replied thereto in denial.
The defendant Frank New filed a cross-complaint, in which he claimed to be the owner in fee for value, and in good faith, of a part of the real estate described in the plaintiff’s complaint, and asked that his title be quieted.
The defendant, Elizabeth New, filed an answer in which she avers that the plaintiff conveyed the south half of lot 2, in block 47, in the city of Indianapolis, to Harry S. New, who conveyed the same to her and that she is the owner thereof.
■ Upon the issues joined the cause was tried by the court, resulting in a finding against the defendants George W. New and Adelia New, and the separate motion of each for a new trial was overruled, and exceptions taken and judgment rendered. Appeal was taken to the general term of j¡he superior court and the judgment of the special term affirmed.
The first question discussed by counsel is an alleged error of the court in overruling a motion to strike out parts of the complaint. We are not referred to any part of the record presenting any question as to the overruling of a motion to strike out any part of the complaint, and from an
It seems that the widow of John B. New loaned the money to George W. New, and after her death the appellee, John C. New, was qualified as the executor of the last will of said John B. New, and as such executor obtained judgment against said George W. New on said notes for nearly $12,-. 000, and afterwards, on final settlement, the balance due on the judgment was transferred and decreed to be due the ap- ■ pellee, John C. New, as a part of his distributive share in said estate. The former adjudications settled the right of the said appellee to recover the balance due upon the judgment. The complaint further alleges a fraudulent transfer by George W. New of the real estate for the purpose of defrauding his creditors, and it further shows that the said Adelia New is the wife of the said George W. New.
It is further contended that the court ei’red in sustaining the demurrer to the second paragraph of the answer of Adelia and Frank New pleading the six years’ statute of limitation. The facts stated and alleged in the complaint, which are not controverted, and are matters of record introduced in evidence, show that the cause of action did arise within six years previous to the commencement of the action, and there is no available error in sustaining the demurrer to this paragraph of answer.
It is next claimed that the court erred in overruling the demurrer to the reply of appellee, John C. New, to the separate answer of Adelia New, which answer alleged that as to said real estate of which John B. New died seized, plaintiff was estopped from subjecting said real estate to sale for the payment of his judgment, for the reason that he had con
The next question presented arises upon the overruling of the motion for a new trial, as to the sufficiency of the evidence to support the finding and judgment.
Items one and two of the will of John B. New are as follows:
“ Item first. I will and bequeath to my wife, Maria New, . all of my estate, real and personal, during her natural life, to be by her used and enjoyed as she may direct: Provided, however, that it is my will that the real estate of which I may be seized shall not be sold or in any way disposed of until after her decease, unless the same may be necessary for her support and maintenance after my personal property has been exhausted; and further direct that the rents and profits of my real estate, after payment for necessary repairs, shall be by my wife used as she may direct.
“ Item second. After the death of my said wife, it is my will and desire that all of my real estate of which I may die seized, as well as all the personal property which shall not have been used by my said wife, shall be equally divided between my children, George W. New, Mary C. Thompson and John C. New, or their heirs respectively, share and share alike.”
After the death of John B. New, George W. New borrowed of the widow about $8,000 in money, and executed his notes to her for the same. After the death of the wddow
There yet remains the further question as to whether or
In the case of Fiscus v. Moore, 121 Ind. 547, it was held by a majority of this court, and is now the settled law of the State, that a debt due an estate of an intestate from an heir may be retained out of his distributive share of the surplus proceeds of real estate which has been regularly sold in order to make assets to pay debts, as against one who took a mortgage pending the settlement of the estate, with knowledge of the indebtedness. If an administrator has the right to apply money due the heir for his share of real estate, which accidentally comes into his hands by reason of the non-divisibility of real estate, so that only a sufficient amount can be sold to pay the debts of the estate, by reason of which indivisibility the administrator is compelled to sell all the
This recognizes the doctrine that there exists a right to have an equal distribution of the estate between heirs devisees, and legatees, and for that purpose there exist, in equity, a lien and right to have such a portion of an estate, whether real or personal, as goes to the heirs, applied to the payment of a debt due from the heir to the estate. In the case at bar, and in like cases, the estate vested, subject to the rights of the widow, and the testator contemplated an equal distribution of such portion of his estate as remained at the death of the widow between the legatees, share and share alike.
In this case the widow had full power to use such portion of the estate as necessary to supply her wants during her life, and at her death provision was made for an equal distribution of the estate remaining between the three children ; before her death one obtains possession of a portion of the the funds constituting a part of the estate, and executes his note for the same, which becomes a part of the assets of the estate. The portion of the real estate which George W. took by the will was subject to the payment of the judgment taken for the portion of the personal estate which he had obtained, and the executor had the right to have it subjected to sale to pay the debt, or in a partition of the real estate the other devisees had the right to have it treated as an advancement, so that the debtor had no interest in the real estate except the amount remaining in excess of the amount of the judgment. The executor having the right, to subject the land to the payment of the judgment, the
It is contended that George W. had conveyed the real estate to his wife, Adelia, for a valuable consideration, before the commencement of this suit, and as against her the land can not be subjected to the payment of the judgment. The question of consideration for the deed to her is disputed, and there is evidence tending to prove that there was no valid consideration for such conveyance. This court must treat it as a voluntary conveyance, without any consideration; and she took only such interest in the land as her husband, in fact, had, subject to the equities of the co-tenants. We do not deem it necessary to further discuss the evidence in the case, or the form of the judgment.
There is no error in the record for which the judgment should be reversed, all of the appellants having filed disclaimers except Adelia New.
Judgment is affirmed, at costs of Adelia New.
Elliott, J., took no part in the decision of this case.