51 Ind. App. 207 | Ind. Ct. App. | 1912
— This is a second appeal in this case. Demurrers were sustained to appellant’s complaint in the court below, and on appeal the Supreme Court reversed the judgment and directed the trial court to overrule the demurrers. Stimson v. Rountree (1907), 168 Ind. 169, 78 N. E. 331, 80 N. E. 149.
Appellee Rountree, both as executor.and in his individual capacity, then filed four paragraphs of answer, the first of which, a general denial, was afterwards withdrawn. Demurrers to the remaining paragraphs were sustained as to the second and third and overruled as to the fourth. Issues were closed by a reply in general denial. Appellant’s motion for judgment on the pleadings was overruled and the case tried by the court, which made a general finding in favor of appellant, to the effect that he was entitled, absolutely, to the sum of $3,000 out of the estate of Florence B. Rountree, deceased, with six per cent interest computed from the end of the first year after the death of the testatrix, a total of $4,188; that appellant was not entitled to interest dur
The facts in the case, as disclosed by the averments of the complaint, necessary to an understanding of the questions here presented, are, in brief, as follows: Florence B. Rountree died testate in Montgomery county, Indiana, the owner of real estate of the probable value of $12,000, and personal property of the value of $100, leaving no debts or claims of any kind against her estate, except the legacies hereinafter mentioned. Her will, set out in the complaint, in one of its items gives her niece, Mary Stimson, $500. ' Item two of the will, which is the one involved in this appeal, provides as follows:
“I give and devise, to my niece Lucy Stimson, the sum of Three Thousand (3,000) Dollars out of my estate; said sum to be held by my executor hereinafter named, in trust for said Lucy Stimson, who is an invalid, and likely to remain so during her life, and in consequence thereof likely to need portions of the principal of said sum from time to time; it being my desire that in case she needs any portion of said principal sum from time to time, it be furnished to her as the need therefor may arise. Said sum, or the portions remaining; to be loaned by my said executor with safe and sufficient security and the income therefrom as well as portions of the principal thereof, to be paid to my said niece as her comfort and welfare may require from time to time': It being my will, however, that said sum of Three Thousand (3,000) Dollars shall be the absolute property of my said niece Lucy Stimson, the same being thus placed in trust for her in order that it may thereby be the more certainly applied to her needs from time to time as above provided. In ease, however, she does not survive my husband, Charles Rountree, and my niece, Mary Stimson, her sister, named in item one of this will, then upon her (the said Lucy’s) death, said sum or the portion thereof then remaining, shall be divided equally between my said husband, Charles Rountree,*210 and my said niece, Mary Stimson; and if at the time of the death of the said Lucy, my said husband, Charles Eountree, shall not then be living, in that case, the half of said sum he would have taken had he then been living, shall go to my sister, Edna B. Stimson, and if neither my sister nor my said husband be living, at the time of the death of said Lucy Stimson, then in that case, the said Mary Stimson shall take the whole of what is remaining of said sum mentioned in this item. ’ ’
Item three of the will, gives, devises and bequeaths to her husband, Charles Eountree, all the residue of her property of every kind and character, whether real, personal or mixed; and item four nominates and appoints said husband, Charles Eountree, the executor of the will.
On February 12, 1902, said will was probated in said court, and Charles Eountree appointed and qualified as executor thereof. All the persons named as legatees in said will survived the testatrix, and all except Lucy Stimson were still living when appellant>filed this action. Lucy Stimson died April 5, 1903, in Yigo county, intestate, and her father, Eobert B. Stimson, qualified as administrator of her estate, and brought this action to recover the legacy mentioned in item two of said will. Immediately after the death of said testatrix, Florence Eountree, her said husband, Charles, took possession of all the property left by said decedent at the time of her death, disposed of by said will, and has converted the same, with all the rents and profits thereof, to his own use, and has continuously since the death of said testatrix remained in the possession and enjoyment thereof. The rents and profits of said property, during the period of said Charles Eountree’s possession, were of the annual value of $1,000. The only bond given by said Charles Eountree was a bond for $200 only, which bond was given by him as executor of said will; that “he wholly failed to qualify or give bond as trustee of the three thousand dollars given by said will to said Lucy Stimson, or, to invest for or pay to her said money or any part thereof, or. any interest thereon. ’ ’
The facts that the estate of the testatrix consisted entirely of real estate, that she had no ready funds out of which the legacy could be paid immediately on her death, and that the residue of her estate, after the payment of the legacies, was given to her husband, who was made executor of her will, lend support to the idea that the testatrix did not intend to charge the legacy with interest from her death. We can see nothing in the wording of this item of the will that necessarily indicates an intention on the part of the testatrix to fix the time of payment of said legacy, or the time when the same should be loaned and interest charged thereon, and therefore nothing to take it out of the class of general legacies contemplated by the above statute, postponing payment thereof until after the expiration of one year from the granting of letters. This conclusion is, we think, supported by the decisions of courts of all jurisdictions having a statute similar to our own.
Appellant next insists that under the issues and the proof made thereunder he was entitled to a personal judgment against Charles Rountree, a decree of foreclosure to satisfy the lien declared on the land, and an order compelling the executor to make the money out of the land and pay it to appellant without delay, and that his motion to modify the judgment should have been sustained in these respects.
The declaring of a lien on the land for the amount of the judgment does not give this relief. We think the trial court should have gone further and ordered the executor to sell the land on which the lien was declared, or so much thereof as was necessary to create the fund with which to pay this legacy, if the residuary legatee, the executor, did not within thirty days from the final determination of the cause make such payment. In this connection it is insisted by the appellees that the proof showed the residuary legatee had made arrangement with himself as executor to furnish this fund. There was no showing that the money had ever been in fact turned over to the executor, or any report of the same made to the court. If Mr. Rountree, as
Appellees have filed a cross-assignment of error. The questions attempted to be raised by the cross-assignment have been settled and adjudicated in the appeal of Stimson v. Rountree, supra.
The judgment below is therefore affirmed, subject to the condition that it shall be so modified as to provide for and contain therein an order on the executor herein to sell the real estate on which the judgment is declared to be a lien, or so much thereof as may be needed for such purpose, and to apply the funds derived from such sale to the discharge of such judgment, such sale of such real estate to be made only in case the residuary legatee does not, within thirty days from the date this opinion is certified down to the court below pay and discharge appellant’s judgment herein, the costs of this appeal to be taxed one-half to appellees and one-half to appellant.
Note. — Reported in 99 N. E. 439. See, also, under (1) 31 Oyc. 358; (2) 40 Oyc. 2094; (4) 40 Oyc. 2089; (5) 40 Oyc. 2106; (7) 40 Oyc. 2059. As to when a conditional legacy begins to bear interest, see 136 Am. St. 476. As to the time from which general pecuniary legacies draw interest in the absence of a governing provision in the will, see 6 Ann. Oas. 525; Ann. Oas. 1912 B 244.