National City Bank v. Bledsoe , 125 Ind. App. 430 ( 1955 )

Royse, P. J.

Appellants’ decedent and appellees’ decedent were husband and wife for about three years prior to June 11, 1954. During their marriage they acquired as tenants by the entireties certain real estate in the City of Evansville, Indiana. Appellants brought this action in the Vanderburgh Probate Court to sell said real estate for the purpose of paying expenses of administration, to make distribution to the legatees of their decedent, and to determine the conflicting and controverted questions of title thereto. Appellees’ demurrer to the complaint was sustained. Appellants refused to plead further and judgment was rendered against them. The error assigned here is that the trial court erred in sustaining said demurrer.

The portion of the complaint necessary to a determination of the question presented here is as follows:

“That on the 11th day of June, 1954, the said Bynus W. Bledsoe shot, killed and murdered the decedent, Thelma Able Bledsoe. That the said Bynus Bledsoe within an hour after said shooting of said decedent shot and took his own life on said 11th day of June, 1954.”

The demurrer asserted:

“1. That the complaint does not state facts sufficient to constitute a cause of action in the personal representative against the said defendants herein.

“2. That the Vanderburgh Probate Court and the Judge thereof do not have jurisdiction of the subject matter alleged in said petition.”

The memorandum in support of said demurrer is as follows:

“The petition does not state facts sufficient to constitute a cause of action in the National City Bank of Evansville, Indiana, as personal representative in the estate of Thelma Able Bledsoe for the following reasons, to-wit:

“Said petition shows that at the time of the death of the said Thelma Able Bledsoe, her husband, Bynus W. Bledsoe, and she were the owners of said real estate by entireties. Therefore, under the law of the State of Indiana, the said Bynus Bledsoe who survived her became the sole and exclusive owner of the said real estate of said Thelma Able Bledsoe and her heirs have no interest in said real estate.”

We cannot agree with appellees’ construction of the complaint herein. The complaint nowhere alleges that the wife died instantly after being shot. The averment “that within an hour after said shooting” the husband “shot and took his own life” cannot be construed to mean that at the time the husband shot himself the wife was dead. It is a matter of common knowledge that persons who have been fatally shot sometimes linger for several days before death. In our opinion, under the complaint herein appellants could have properly introduced evidence to prove their decedent survived her husband, or that both died simultaneously, or that he survived her.

While the briefs of the parties herein are based on' the theory the wife died first, and in the oral argument that was conceded, that cannot affect our decision on the question before us. We are restricted to a consideration of the averments contained in the complaint and the memorandum in support of the demurrer. Even by agreement of the parties we may not permit the amendment of the complaint in this court.

In our opinion the complaint herein stated a cause of action in appellants, and the Probate Court had jurisdiction of the subject-matter of such action. Therefore, the trial court erred in sustaining the demurrer.

Judgment reversed, with instructions to overrule the demurrer.