Vonderahe, Extr., Etc. v. Ortman , 128 Ind. App. 381 ( 1958 )

Kelley, C. J.

The decedent, Ed Ortman, died testate on August 2, 1955, the owner of certain real estate in Howard County, Indiana. The will of said decedent directed the executor thereof to pay his just debts, bequeathed certain personal property, and then directed the executor to sell all the rest and residue of his property, real and personal, and convert the same into cash. The following pertinent specific provisions are contained in the will:

ITEM III.

“ ... . The sale of my personal property and the sale of my real estate shall be upon such terms and conditions as the court having jurisdiction of my estate may order and determine upon petitions duly filed by my Executor for such purpose.

ITEM IV.

“After my Executor has complied with the provisions of Item III. above and all of my estate has been converted into cash, I will and direct that said Executor from the proceeds of such sale and the cash on hand and in bank pay all of my just debts and pay all state, county and township property tax that may be assessed against my property at the time of my death and pay all state gross income tax, state inheritance tax, all federal income tax and any and all federal estate tax, if any, and all other tax that may be assessed against the property or my said estate. It is my will that all taxes that accrue or arise by reason of my death a,nd by reason of the provisions of this Will be paid by my Executor and that no such tax shall be assessed against the beneficiaries herein or paid out of their separate bequests.”

Said will of the decedent was duly probated on August 8, 1955 and is certified to have been recorded on the same date in the Will Records of said Howard County.

On August 8, 1955, appellant, Jack Vonderahe, was appointed executor of said will and he duly qualified, and notice of his appointment was properly published, the last date of publication being August 24, 1955. The estate of said decedent was opened August 8, 1955, and is now pending in the Howard Superior Court.

On September 12, 1955, said executor filed his petition in said court to sell the real estate of the decedent, making parties thereto the beneficiaries named in the will and the tenant in possession of the real estate. The petition averred the direction in said Item III. of said will for the sale of the real estate by the executor and that the purpose of the petition was to obtain an order of sale thereof and “to have the court fix the terms of such sale.” All of said beneficiaries either appeared to said petition by counsel or consented thereto and the record discloses no objection to said petition or the prayer thereof by any of them.

An order authorizing the executor to sell the real estate in parcels at public auction for not less than two-thirds of the appraised value thereof was entered by the court on September 16, 1955. Said order further provided that the real estate be sold “free and clear of all liens and encumbrances except the taxes for the year 1955 due and payable in 1958” (italics furnished), and that notice of the sale be published once each week for three consecutive weeks. Notice of the sale was duly published in a public daily newspaper of Kokomo, Indiana, describing the real estate, giving date of the sale, and that the same would be sold “free and clear of all liens and encumbrances except for the year 1955 due and payable in 1956.” (Italics supplied.)

On October 24, 1955, the executor filed his Report of Sale of the real estate, reporting therein that on October 1, 1955, two parcels of the real estate were sold to appellees Richard K. Ortman and Joseph N. Ortman and his wife, and on the same date the two remaining parcels of the real estate were sold to ap-pellee, R. Franklin Zehring, and his wife; that said real estate was sold “subject to the taxes for the year 1955, due and payable in 1956.” (our italics) ; and reporting other essentials of the sale, not important to the question before us. Request for approval and confirmation of the sale was made.

By its order of October 24, 1955, the court found that the Executor “after giving notice of the time, terms and place of sale as required by the order of this court” (our italics) sold the real estate as reported, and “in all things ratify and confirm the same together with the acts of said executor as by him reported.” (Italics supplied.) The executor was ordered to execute his deeds conveying Parcel 1 to appellee, Richard Kirby Ortman, Parcel 2 to appellee Joseph Ned Ortman and his wife, and Parcels 3 and 4 to appellee R. Franklin Zehring and his wife. Said deeds were reported as signed by the executor and the same were “examined” and “approved” by the court and ordered delivered to the purchasers upon their payment of the residue of the purchase price. The deeds appear in usual form and recite the consideration thereof and contain no reference to the taxes.

On February 10, 1956, appellee, Richard K. Ortman, filed a claim against the estate of said decedent for $195.60 and on the same date appellee, Joseph N. Ort-man, filed his claim against said estate for $348.60. On April 27, 1956, appellee, R. Franklin Zehring, filed his claim against said estate for $777.48. Said claims were predicated on a claim for reimbursement by the estate to the claimant for the payment by him of the 1955 taxes, payable in 1956, on the real estate so purchased from the executor. The respective claims were disallowed by the executor and thereafter were transferred to the court’s trial docket as a civil action. By agreement the several causes were consolidated and submitted to the court for trial, without jury.

The court found for the respective claimants in the amounts claimed and entered judgments on the several findings. The court overruled appellant’s motions for a new trial and such ruling is assigned as error. By stipulation of the parties, the consolidated causes are submitted to us as one single appeal.

The initial matter for consideration is whether the alleged claims of appellees were of such character and nature as to constitute valid, allowable claims against the estate of the decedent. The facts as heretofore delineated show that the appellees purchased the real estate under the terms and conditions of sale prescribed by the court and as published in a public daily newspaper for three consecutive weeks, pursuant to the order of the court in that behalf. One of those terms and conditions of sale was that the real estate would be sold free and clear of all liens and encumbrances “except taxes for the year 1955 due and payable in 1956.” The executor’s report of sale reported that the sale had been made to appellees subject to such taxes, and such sale, as so reported, was duly ratified and confirmed by the court and the executor’s deeds to appellees, executed pursuant to the order of the court therefor, were examined and ap■proved by the court and ordered delivered to appellees. Under such facts, there appearing nothing in the record negativing the fact of notice, it must be presumed that appellees purchased the real estate and accepted the deeds of conveyance thereof with full ■knowledge of such terms of sale and that the real estate was sold to them subject to the 1955 taxes, payable' in 1956. Further, the deeds to appellees reciting the Order Book and page wherein the order of the court was entered authorizing the executor to execute the deeds was notice of the contents of the order under and pursuant to which the deeds were executed. Pierce, Administrator v. Vansell et al. (1905), 35 Ind. App. 525, 536, 74 N. E. 554.

Appellees’ alleged claims as disclosed by the record, arose subsequent to decedent’s death and were not the outgrowth of any contract or arrangement with decedent in his lifetime. A claim, as that term is used in the probate code, §7-802, Burns’ 1953 Replacement, is a debt or demand of a pecuniary nature which could have been enforced against the decedent in his lifetime and could have been reduced to a simple money judgment. Tinkham, Executor v. Tinkham et al. (1942), 112 Ind. App. 532, 538, 45 N. E. 2d 357; Williams et al. v. Williams, Admr. et al. (1940), 217 Ind. 581, 585, 29 N. E. 2d 557. Such claim is not designed to try an issue arising out of the conduct of the executor or administrator occurring after his appointment. Isbell v. Heiny, Administrator (1941), 218 Ind. 579, 582, 33 N. E. 2d 106.

It seems clear under the facts and the cited authorities, that appellees’ actions, asserted as claims against the decedent’s estate, were not of such character and nature as to constitute them valid and allowable claims against said estate, within the meaning of the aforesaid section of the probate code.

Appellees attempt to justify the filing of such alleged claims and the determination thereof by the court, upon the ground that under Item IV. of decedent’s will, above quoted, the executor “had a solemn fiduciary duty to pay the taxes pursuant to the express direction of the decedent in his will” which the executor failed to perform, and the court had “the right and duty to construe Testator’s will to determine Testator’s intent with regard to the payment of real estate taxes,” so that the court was “correct in allowing the claims of the appellees and thus carrying out the express wishes of the Decedent.”

We fail to perceive the force of this contention. It may be that the court in a proper action for such purpose would be authorized to construe any ambiguous provision of the will, but we are at loss to comprehend upon what basis the court can permit improper claims against an estate upon the theory of construing the will. The action and orders of the court in authorizing and fixing the terms of the sale of the real estate by the executor had become final and crystallized and could not be altered by collateral proceedings. No action or petition to change or modify said orders and proceedings with reference to the sale of the real estate and the confirmation thereof was ever taken or filed by any person or party, insofar as the record reveals. Yet the action of the court in adjudicating said asserted claims had the effect of collaterally changing, altering, and modifying such orders and proceedings, so that the real estate was not sold free of the 1955 taxes payable in 1956, as therein provided, but, by the allowance of said claims, the real estate was, in fact, sold free and clear of such taxes.

Even if appellees’ said contention be countenanced, it lacks conviction. The will, with regard to the provision mentioned, does not indicate any ambiguity. It provides, inter alia, that the executor pay the designated taxes from the proceeds of the sale. In applying ordinary and common understanding to the meaning and purpose of said provision, wherein lies the difference whether the executor shall sell the real estate for a certain price and then personally pay the taxes out of the amount received, or whether he should sell the real estate at a price which permits the buyer to pay the taxes? In either event he has complied with the terms of the will, as written.

The will was a matter of public record at the time of the proceedings leading to and the sale of the real estate to appellees. The executor’s petition for the fixing by the court of the terms of the sale referred to the appropriate provisions of the will, and the notice of sale given in the public newspaper described the appellant as the executor of the last will and testament of Ed Ortman, deceased. It must be assumed, then, that appellees had knowledge of the will at the time of their negotiation for and purchase of the real estate. Notwithstanding, insofar as the record reveals, appellees voiced no objection to the sale and accepted their deeds without protest to the action taken by the executor or the terms under which the real estate was sold. Such conduct by appellees would, it seems, constitute a waiver by them of any right they may have claimed to possess to insist upon appellant’s compliance with the will provisions, as construed by them. At this point, it may be well to advert to the principle that in sales by executors and administrators, the maxim of caveat emptor applies (Henry’s Probate Law and Practice, Vol. 1, Sec. 12, note 10, page 745) and, therefore, it would seem to have been the duty of appellees, before they consummated the purchase of the real estate, to search the records as to the source of their title and determine therefrom the rights, duties and limitations of the executor.

The parties advance other propositions for our consideration, but in view of our conclusion that the court erroneously determined upon and adjudicated the alleged claims of appellees as proper and valid claims against the estate of the decedent, it seems unnecessary to now consider them.

The judgments appealed from are each reversed and this cause is remanded with instructions to sustain appellant’s motion for a new trial and for further proceedings not inconsistent herewith.

Royse, P. J., dissents upon the ground that in his opinion the appellant executor has no appealable interest and has no right to maintain this appeal.