DocketNumber: No. 4,701
Citation Numbers: 32 Ind. App. 587, 70 N.E. 409, 1904 Ind. App. LEXIS 118
Judges: Roby
Filed Date: 3/15/1904
Status: Precedential
Modified Date: 10/18/2024
Action by appellee to recover money averred to belong to tbe estate of James Moore. Tbe appellants, and tbe appellant Weaver, separately demurred to tbe complaint, and tbe action of tbe court in overruling said demurrers is presented by proper assignment.
Tbe facts set up in tbe complaint are, in effect, as follows: James Moore died testate in Grant county, Wisconsin, on April 30, 1885, where he had lived for many years. ITe left surviving his widow, Sarah Moore, and his son, John S., the only child, and by his will bequeathed the use of his estate to his widow during her life, and at her death to his said sou, who was appointed executor. The will was duly probated, and said John S. qualified as executor, entered upon his duties as such, took possession of the estate, and made a partial inventory thereof.
The family had lived together before the father’s death, and afterward the mother and son continued to do-so until June 6, 1891, when John S. departed life, leaving his widow, Addie Moore, and one child, Alma (now Alma Eox), his sole heirs. All the property in the family was that OAvned originally by J ames Moore, amounting to about $10,000, mostly in money and securities; possession thereof being held by John S., as executor, until his death. Under the Wisconsin statute, the title to all this property passed to the executor; legatees and heirs acquiring title only through the judgment of distribution made by tbe county court having jurisdiction. At the death of John S. Moore, his mother took possession of all said estate, and secretly carried $5,000 to Brazil, Olay county, Indiana, where the defendant Weaver, her brother-in-law, Dilley, her brother, and Carpenter, a relative by marriage of Dilley, resided, and Avith them conspired and confederated to conceal said sum from the persons entitled thereto, and
The proposition insisted on by appellant is that if John S. Moore, as executor of the estate of J ames Moore, so far executed his trust as to reduce the assets of the estate to money, pay the debts, and pay over to Sarah Moore (Garthwaite) the fund in controversy, then such fund ceased to belong to said estate, and can not be recovered by this administrator. The complaint contains an averment as follows : “That from the time of the death of the said James Moore, deceased, up to the time of the death of the said John S. Moore, the said John S. Moore as such executor had and retained the possession of all the estate of said James Moore, deceased, and by and with the consent and with the 1 assistance of his mother, the said Sarah Moore, handled and managedethe same as such executor, and they both had their living therefrom, and no part of the income was ever by them, or either of them, in any way segregated or set or kept apart from the body of the said estate, but the whole of the income thereof was by both of them always handled as part and parcel of the body of said estate, as this plaintiff is informed and believes.” It follows that, even under appellant’s statement of the law, the demurrer for want of facts was correctly overruled.
The proposition above stated is asserted, in argument, to apply to the evidence, under the grounds for a new trial
The verdict of the jury includes a finding that John S. Moore did not intend to part with title to said money and securities. In the absence of a completed gift by him to her, it would have been his duty at her death to have resumed possession of such property, had it been delivered to her in specie, and to have then transferred it to the person entitled thereto. Golder v. Littlejohn, supra. The mere possession of the property did not authorize her to dissipate or give it away. She could not thus defeat the will of her husband, by which only its use during life was given her. It follows that after the death of the mother the representative of the estate was the only person entitled to possession of said property, and was therefore the pi’oper party to
John S. Moore was thrice married. Erom the mother of Alma he was divorced. After his death the guardian of Alma applied to the county court of Grant county, Wisconsin, for the appointment of an administrator de bonis non of the estate of James Moore. Sarah Moore (Garthwaite) appeared in this proceeding and objected to such appointment, denying, in her objections, that Alma was the child of John S. Moore, or his heir, and asserting that said estate had been fully administered. Trial was had, evidence heard, finding made for the applicant, and an administrator appointed as prayed.
The record of this proceeding was introduced in evidence on the trial of the ease at bar. There was no error in admitting such evidence. Appellants are in privity with— claiming under — Sarah Garthwaite. The judgment therefore concludes them upon the facts in issue.
The record of the divorce suit between John S. Moore and the mother of Alma Moore was also introduced in evidence. The legitimacy of the daughter was then adjudicated and declared. The facts disclosed by these records illustrate and explain the action of said Sarah in seeking, with the aid of her second husband and appellants, to prevent a full administration in Wisconsin upon the estate of James Moore, resulting, as it evidently would have done, in the payment to the daughter of whatever surplus might ultimately remain for distribution. There was no error in the admission of the evidence.
A brief of 294 pages has been filed by appellants. Thirty-four grounds for a new' trial were enumerated in the motion therefor, as high as eleven causes being named in a single specification. The alleged errors are referred to in the brief, although the reference comes short in many instances of such an argument as is necessary on appeal. We
The judgment appealed from was for $5,000. It accords with the merit of the controversy, and is therefore affirmed.