Vail, Executor, et al. v. Rinehart. It is further shown by such transcript that at the September term, 1883, of the Dearborn Circuit Court, appellee Rinehart filed an answer in general denial merely of the administrator's petition, and wholly failed, by counter-claim or cross complaint, to assert any claim to the decedent's lands in Pulaski county, or his alleged lien thereon which he is seeking to enforce in this suit. At the same term of the Dearborn Circuit Court, the transcript further shows that the matters arising under the administrator's petition were heard by such. court, and a finding was made in favor of such administrator; and, over Rinehart's motion for a new trial, the court ordered the sale of the decedent's lands in Pulaski county, without providing in any way for either the protection or payment of Rinehart's alleged lien thereon. We are of opinion that, upon the trial of this cause, the court clearly erred in sustaining the appellee's objections to the admission of the certified transcript from the Dearborn Circuit Court in evidence, and in the exclusion of such offered evidence. This transcript showed upon its face that the Dearborn Circuit Court had jurisdiction, not alone of the subjectmatter of the present controversy, but also of the persons of the parties to this suit, or of those under whom such parties claim. The transcript conclusively shows, we think, the pendency of a prior suit, in a court of competent jurisdiction, wherein the appellee Rinehart not only could or might have enforced his alleged lien on the decedent's lands in Pulaski county, but was absolutely required by the provisions of the statute, as we construe them, to set up and assert his alleged lien upon the decedent's real estate, and have the same ascertained and adjudicated by the court prior to or at the time of making the order for the administrator's sale of such real estate. It clearly appeared from such transcript that this action ought not to have been brought during the pendency of the prior suit in the Dearborn Circuit Court, and that the appellee could have, and therefore ought to have, asserted his alleged lien and sought its enforcement in the prior suit. Vail, Executor, et al. v. Rinehart. Dawson v. Vaughan, 42 Ind. 395; Moore v. Kessler, 59 Ind. 152; Merritt v. Richey, 100 Ind. 416. The transcript offered in evidence would have shown, also, that the alleged lien which the appellee was seeking in this suit to enforce against the decedent's lands in Pulaski county, not only might have been, but, under the statute, was required to be litigated, ascertained and determined in the prior suit in the Dearborn Circuit Court. The judgment of that court, in such prior suit, was against the appellee, Enoch Rinehart, as we have seen, and it must now be regarded as final and conclusive, as his appeal therefrom to this court was recently dismissed, in Rinehart v. Vail, 103 Ind. 159. Under repeated decisions of this court, from its earliest organization down, the adjudication of the Dearborn Circuit Court against the appellee, in such prior suit, is a final determination against him, not only as to what was actually decided therein, but also as to every other matter which the parties might have litigated in the case, and especially as to the alleged lien which the appellee asserts and seeks to enforce in the case in hand, against the decedent's lands in Pulaski county. Fischli v. Fischli, 1 Blackf. 360; Richardson v. Jones, 58 Ind. 240; Elwood v. Beymer, 100 Ind. 504. For the error of the court in the exclusion of such certified transcript when offered in evidence, appellants' motion for a new trial ought to have been sustained. Other rulings of the court, in the exclusion of offered evidence, are complained of here as erroneous, but we need not extend this opinion in considering such rulings, as the views already expressed will not only require the reversal of the judgment below, but will probably put an end to appellee's supposed cause of action. The judgment is reversed with costs, and the cause is remanded for a new trial, and for further proceedings in accordance with this opinion. Filed Jan. 19, 1886. Wright, Administrator, v. Jones et al. No. 10,726. WRIGHT, ADMINISTRATOR, v. JONES ET AL. WILL.-Construction.-Life-Estate.-Devise of Fee to Trustee.-Where all the From the Marion Superior Court. W. Wallace, L. Wallace and O. T. Boaz, for appellant. G. Carter, J. N. Binford, A. C. Harris and W. H. Calkins, for appellees. ELLIOTT, J.-The theory of the appellant's complaint is that the real property in controversy is subject to seizure upon judgments rendered against the appellee Jesse Jones, and that his title to the property, derived through his deceased wife, Louisa J. Jones, is in fee. The fifth paragraph of the answer of the appellees avers that "In the year 1840 VOL. 105.-2 1105 17 127 356 105 17 131 228 132 26 132 392 105 17 137 620 139 226 105 17 141 184 105 17 149 159 149 161 152 262 Wright, Administrator, v. Jones et al. Jesse Jones married Louisa J. Norwood; that at the time of said marriage neither of them had any property or estate; that two children only were born of said marriage, namely, the said Maria, now intermarried with said Foltz, and the said Mary, now intermarried with the said Hawkins; that after said marriage Jesse Jones acquired property from, and by means of, his own industry up to the date of the making of the will, hereinafter set forth. They also show that during the time intervening between the marriage of said Louisa and the making of the will hereinafter mentioned, the father of said Louisa, Mr. George Norwood, from time to time, gave to her, out of his own estate, money and property, which she kept separate and apart from the estate of her said husband, and controlled and received and used the proceeds and income thereof as her own at all times during her life; that heretofore, to wit, on the 23d day of April, A. D. 1874, the said Louisa owned the property described in the complaint, and she, with her husband, resided in certain property situate on Illinois street in the city of Indianapolis, which was known as their home, and which, with her other property, had been given to her by her father; that on said day, she being in feeble health, desired to make a will so as to secure her husband a home during the remainder of his life in said homestead, and to insure to their children during their lives all the rest and residue and remainder of her estate of which she might die seized. At that time said Jesse Jones, her husband, owned valuable real estate in said city of the value of $50,000, and was not in debt to any persons whatsover. And the said Jesse greatly desired, in case his wife should first die, to spend the remainder of his life in said family homestead, in which they had theretofore resided for a great many years, and wherein said children had been born and married; that to carry out their mutual purposes and desires, it was then and there mutually agreed, in consideration of their mutual promises, that the said wife, Louisa, should make a will giving to him the use and occupancy of said home during his Wright, Administrator, v. Jones et al. life, in consideration of which he would and did, then and there, agree that she should devise all the rest and residue of her estate to her said children and their descendants; and thereupon, in fulfilment of said mutual agreement and understanding, the said Jesse procured an attorney at his own. expense, to wit, fifty dollars, to write a will expressive of their contract, agreement and mutual desire, which will was, on said day, drafted and submitted to them jointly, and accepted and approved by them jointly and severally, as being in fulfilment of said agreement and the true expression of their desires, which will was then and there executed by the said Louisa, and with the full consent of said Jesse, and in pursuance of their agreement aforesaid." These allegations are followed by a copy of the will of Louisa J. Jones, but we do not deem it necessary to set it forth in full. It is sufficient to say that it makes a bequest to the church of which she was a member, devises the fee of all of her real estate to Howard M. Foltz, in trust for her children, and makes the following provisions respecting her husband: "Article 3. I give and devise unto my dearly beloved husband, Jesse Jones, my present house, being the premises and house wherein we now reside, and known as number 488 North Illinois street, in the city of Indianapolis, Marion county, Indiana, and being parts of lots seven and eight in Blake's subdivision of out-lot one hundred and seventy in said city, to have and to hold during the term of his natural life, and at his death to descend to my executor, as hereinafter provided, to be held by him as herein directed. "Article 4. I give and devise and bequeath unto my executor, Howard M. Foltz, and to his successor or successors in and to said trust, all the rest and residue of my real and personal estate, to have and to hold in trust for my two daughters, Mrs. Mary V. Foltz and Maria A. Hawkins, and their children and descendants, in the manner and for the uses following, that is to say: |