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The Continental Life Insurance Company v. Houser.

then held that such third paragraph, "although badly drawn and lacking in certainty," was sufficient on demurrer as an "ordinary count for money had and received." If the paragraph is sufficient on demurrer, and our former holding is conclusive that it is, surely it is sufficient when, as here, it is called in question for the first time by an assignment of error in this court.

2. Appellant's counsel vigorously assails, in argument, the overruling of the demurrer to the fourth paragraph of appellee's complaint. Appellee's counsel claim, however, that if this ruling be erroneous, it is a harmless error for the reason that the court below "excluded all evidence offered under the fourth paragraph of complaint." This is equivalent, we think, to an admission ou the part of appellee that the verdict and judgment below herein rest, and must be rested, upon the first paragraph of appellee's complaint. Besides, the fourth paragraph of complaint, now before us, states substantially the same facts as were stated in the fourth paragraph of complaint on the former appeal herein, the substance of which facts we have given in our former opinion. We then held, and we see no cause for changing our decision, that the facts so stated were not sufficient to withstand a demurrer, and that the paragraph of complaint was not "good for any purpose or upon any theory." In the case under consideration, the court clearly erred, we think, in overruling appellant's demurrer to the fourth paragraph of appellee's complaint.

3. In our opinion, on the former appeal herein, we said: "The policy was valid in its inception, and there was for a time a risk, and the general rule is that where the risk attaches preminms can not be recovered from the company. Bliss Life Ins. 750; May Ins., section 567. If there was a continuing valid risk up to the time the last preminm was tendered and refused, then the preminms previously paid can not be recovered. May Ins., sections 568 and 569." We The Continental Life Insurance Company v. Houser.

think this is a correct statement of the law, and certainly it is the law of this case. For the rule of law applied by this court in the decision of a cause remains the law of that case in all subsequent proceedings therein. Kress v. Slate, ex rel., 65 Ind. 106; Pittsburgh, etc., R. W. Co. v. Hixon, 110 Ind. 225, and cases there cited.

Applying the rules of law declared in our opinion on the former appeal herein to the case as now presented, we are of opinion that the verdict and judgment below can not possibly be sustained. There is no evidence in the record of this cause, as now presented, which proves, or tends to prove, that appellant ever had and received any money, for the use and benefit of appellee, upon any account other than premiums paid upon a valid risk assumed by appellant upon the life of Louise Hesse. Under the law of this case, as declared by this court on the former appeal herein, such premiums so paid can not be recovered back from the appellant as and for money had and received. It follows, therefore, that the verdict of the jury was not sustained by sufficient evidence and was contrary to law; and, for these causes, it was error in the court below to overrule appellant's motion for a new trial. This is not a case of conflicting evidence. But it is a case where the evidence wholly fails to establish a valid and legal claim against the defendant.

Appellant's counsel also complain, in argument, of certain alleged errors of law occurring at the trial and excepted to, and assigned as causes for a new trial in the motion therefor; but, as these errors of law are not likely to occur again, we do not now consider them. In conclusion, we commend to the consideration of appellee and her counsel the suggestions contained in the closing sentences of our opinion on the former appeal herein, and the authority cited in support thereof. Day v. Connecticut, etc., Lis. Co., 45 Conn. 480; Continental Life Lis. Co. v. Houser, supra.

The judgment is reversed, with costs, and the cause remanded with instructions to sustain the demurrer to the Bonner el at. v. Koss, Administrator.

fourth paragraph of complaint, and for further proceedings Dot inconsistent with this opiuion. Filed June 17, 1887.

No. 12,887.

Renner Et Al. V. Ross, Administrator.

Parties.Practice.Supreme Court. Waiver.—Where one is made a party defendant to an action, who is neither a necessary nor a proper party thereto, the plaintiff can not be heard to object to his right to assail the complaint or petition by assignment of error in the Supreme Court on appeal.

Decedent's Estate.Administrator. Sale of Real Estate.Petition.—An administrator is allowed to sell land for the purpose of making assets only in case of necessity, and in his petition for an order of sale he must state facts clearly showing that such necessity exists.

Same.Will.Widow's Statutory Allowance.Election by Widow.—A petition by an administrator for an order to sell the real estate of the decedent to make assets for the payment of the widow's statutory allowance, which shows that there is a will, but does not show whether or not the widow has elected to take under its provisious, is insufficient.

From the Fayette Circuit Court.

C. A. Murray, J. M. Mcintosh and Q. Roehl, for appellants. R. Conner and H. L. Frost, for appellee.

Elliott, J.—The appellee filed the petition on which the proceedings set forth in this record are founded, asking that the land of which his decedent died the owner be sold for the payment of debts due from his estate.

David J. Renner was made a party to the petition by the appellee, and joins in the assignment of errors with his wife, Mary A. Renner, one of the heirs of the decedent, and it is argued by the appellee's counsel, that, as he was neither a proper nor a necessary party to the proceeding, he had no right to join in an attack upon the petition. The appellee's Rentier et al. v. Ross, Administrator.

position is not tenable. By his voluntary act he made David J. Renner a party, and he can not now be heard to allege that he was not a proper party. Having brought Renner into court as a party, the appellee has no right to complain because Renner defends as a party. The appellee can not be allowed to occupy inconsistent positions.

There was no error in overruling the motion to make the petition more specific. This motion asked that the petition 'be made to show " what portion of the rea'/ estate is liable to be made assets," and as the petition stated the facts that was a question of law. It was not necessary for the petitioner to make his petition more specific than the statute requires, and that only requires a concise statement of the facts. Counsel argue the question as if the motion required the court to compel the petitioner to show whether the widow had elected to take under the law or under the will, but this is not the question presented by the motion.

The petition shows that the only claim for which it is necessary to sell the real estate is that of the widow. On that point the allegations of the petition are these: "That there are no debts of said estate except the costs of this administration and the $500 given the widow by statute, unless Mary A. Renner files claims against said estate for the expenses of the last sickness, and funeral expenses, which were paid by her; that if the widow elects to take under the provisions of the will, all of said real estate, except the life-estate of said widow, is liable to be made into assets for the payment of said debts, and the part thus liable is of the probable value of $1,500; that if said widow does not elect to take under the provisions of said will, then the undivided twothirds of said real estate is liable to be made into assets."

It is insisted that the petition does not state facts sufficient to entitle the appellee to an order for the sale of the property, because, for aught that appears, the widow may have elected to take under the will, and thus have relinquished her right to the statutory allowance.

Renneret al. v. Ross, Administrator.

In Langley v. Mayhem, 107 Ind. 198 (6 N. E. R. 317, and note), it was held that the allowance will be released by the widow's election to take under an inconsistent provision of her husband's will, and if there was such a provision in the will of the husband of Ann Vietor there was no necessity for selling the real estate. It is a settled doctrine of the law that resort can only be made to the real property in a case of necessity. Cole v. Lqfontaine, 84 Ind. 446, and cases cited; Jackson v. Weaver, 98 Ind. 307; Scherer v. Inrjerman, 110 Ind. 428. We think it the duty of the administrator who seeks to compel the sale of real estate to state facts showing the necessity for resorting to it.

If the petition before us can be regarded as showing a necessity for resorting to the real estate, it should be upheld; otherwise it should be condemned. It seems to us that the petition does not show the existence of this necessity. It is not averred that the widow made an election, nor that she has not, but it is left in doubt as to what course she may pursue, so that it can not be said that there is any necessity for resorting to the land to pay her claim. It is true that in many cases the presumption, in the absence of countervailing facts, is, that the widow took under the law. Wetherill v. Harris, 67 Ind. 452. But we do not think this presumption can prevail where the administrator seeks to take the land from the heir and sell it to pay the widow's allowance, under section 2491 of the Revised Statutes. In such a case the duty of affirmatively showing that it is necessary to take the land devolves upon the administrator. He has no right to invoke the benefit of this presumption.

In this case the petition can only be sustained by making one of two important presumptions against the heir, and that, we are clear, the law will not warrant us in doing.

The general statement that if the widow elects to take under the will, then, all of the land subject to her life-estate is liable, is but the pleader's conclusion. Whether the land is liable depends upon the provisions of the will and the

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