Barnett v. Van Meter

• Decision Date: 17 March 1893
• Citation: 7 Ind.App. 45,33 N.E. 666
• Parties: BARNETT v. VAN METER et al.
• Court: Indiana Appellate Court

7 Ind.App. 45

33 N.E. 666

BARNETT

v.VAN METER et al.¹

Appellate Court of Indiana.

March 17, 1893.

Appeal from circuit court, Washington county; Ralph Applewhite, Special Judge.

Action on a bond by Emily Barnett, administratrix de bonis non of the estate of Daniel Barnett, deceased, against Joseph H. Van Meter and others. Defendants had judgment on demurrer to their answer, and plaintiff appeals. Reversed.

Lotz, J., dissenting.Zaring & Hottel, for appellant. Alspaugh & Lawler, for appellees.

REINHARD, C. J.

Daniel Barnett, the appellant's decedent, in his lifetime, recovered a judgment in the Jackson circuit court against the appellee Van Meter. The latter appealed to the supreme court, and executed an appeal bond, with the other appellees as his sureties. The supreme court affirmed the judgment. This action is by the appellant as administratrix de bonis non of said Daniel Barnett's estate, and seeks the recovery of the penalty on such bond, the breach thereof being duly alleged in the complaint. The appellees answered in three paragraphs. The first of these, which was the general denial, was withdrawn. A demurrer was addressed severally to the second and third paragraphs, and overruled, and this ruling constitutes one of the errors assigned and relied upon for a reversal. The second paragraph of the answer alleges, in substance, that the appellees admit the execution of the bond mentioned in the complaint, but say that the said Daniel Barnett died in Washington county, Ind., on the 5th day of October, 1888, intestate, and that afterwards, on the 3d day of November, 1888, one George W. Barnett was by the circuit court of said county appointed administrator of said Daniel Barnett's estate, and as such gave bond and qualified, and said George Barnett, as such administrator, fully administered said estate, and on the 7th day of December, 1889, made and filed his final report and settlement of said estate in said court, and the same was, after due notice, heard by said court on the 24th day of December, 1889, and was then and there approved by the court, and said estate adjudged finally settled by the court, and that said George W. Barnett was discharged from his trust as such administrator; that said judgment remains of record in said court, and is in full force and effect, and has never been appealed from; wherefore defendants demand judgment, etc. The appellant insists that this paragraph of the answer is insufficient, and that the demurrer to it should have been sustained. Prior to the 5th day of March, 1891, there was no law in force in this state under which an administrator de bonis non could be appointed for any decedent's estate after the final settlement of such estate, unless such settlement was vacated or set aside. Pate v. Moore, 79 Ind. 20;Croxton v. Renner, 103 Ind. 223, 2 N. E. Rep. 601. Were it not for the act of the general assembly of the above date, we question very much the validity of the appellant's appointment, and her right to maintain any action as administratrix de bonis non; but whether in that case the mode of challenging the appointment here adopted would be the proper one is quite another question, for it is settled law that the validity of the appointment of an administrator can only be questioned by a direct attack. Ferguson v. State, 90 Ind. 38;Jenkins v. Peckinbaugh, 40 Ind. 133. The act referred to provides that “whenever hereafter it shall be shown to the satisfaction of any court of probate jurisdiction of this state that the administrator or executor of the estate of any decedent has been finally discharged, and that there is no administration of said estate pending in any court of this state, and that there are assets belonging to the estate of said decedent within the jurisdiction of said state that have not been and should be administered, then, upon application of any creditor or legatee whose debt or legacy, in whole or in part, remains unpaid, or of any person entitled to share in the distribution of said estate, such court may appoint an administrator de bonis non of said estate, who shall be required to file bonds, inventories, and reports, and have the same powers now given to administrators and executors by law, and be governed in all things by the laws now in force, or that may hereafter be enacted, for the settlement of decedent's estates.” Acts 1891, pp. 107, 108. By the passage of this act it was doubtless intended to reach any assets for the benefit of creditors, legatees, or heirs which had not been administered upon in the former administration. Under the former law, after final settlement, a period of three years was allowed any person interested in the estate to have such final settlement set aside in the proper court, upon a proper showing of illegality, fraud, or mistake in such settlement, or in the prior proceedings in said estate. Rev. St. 1881, § 2403. Failing in this, the person was without remedy, unless he was an heir or legatee, and the claim came to him through the estate. Under the present law, a creditor, heir, or legatee, upon proper showing, even after the lapse of three years, and without any attempt first to open the final settlement, may have the court to appoint an administrator de bonis non for the purpose of collecting such unadministered assets and applying the same to the payment of debts or legacies, or for distribution to those entitled to receive the same. When the court determines from the facts shown that there are assets available which have not been before reached it will make the appointment of the administrator de bonis non, and such administrator then proceeds in all respects as other administrators or executors in the settlement of the estate. If, among the assets not administered, there should be a chose in action, such as the one in suit here, which is due from any debtor to the estate, the administrator de bonis non may institute suit and recover whatever may be owing from such debtor, and the latter is entitled to the benefit of all defenses that would be available to him in any other action for the same demand.

The appellees' contention is that the paragraph under discussion is a plea of former adjudication. As such, is it sufficient? It is doubtless true that the final settlement of an estate by an administrator upon such notice as the statute prescribes is an adjudication of all matters properly involved in such settlement. Carver v. Lewis, 104 Ind. 438, 2 N. E. Rep. 705. If it can be said that this rule inures to the benefit of a debtor of a decedent, it must be because the claim against such debtor had been duly inventoried and administered by the executor or administrator,and in some manner passed upon by the court in the settlement of the estate. Whether it may be said that a claim has been administered upon in any case when it still remains due and unpaid we need not decide. We think it must be admitted, however, that, unless such claim has been at least in part subjected to the process of administration, it cannot be claimed that it has been adjudicated. If the claim was not inventoried, reported, or in some way involved in the administration, certainly no one could justly contend that there had been an adjudication which bars the estate or personal representative of the decedent. If such a pleading as the one here presented could be upheld, even without the act of 1891, would it not devolve upon the defendant in such a suit to allege in his plea that the particular claim in suit had been fully administered upon? But as to this we need not decide, for we are of the opinion that the pleading which is here relied upon as an answer of former adjudication is nothing more nor less than an indirect or collateral effort to question the appellant's right to maintain the action. If it is true that the estate had been finally settled, and if there was no law by which an estate could be opened up and an administrator de bonis non appointed, this would be a very good reason for revoking the appointment in a direct proceeding for that purpose; and if the letters had not been properly issued, it might also furnish a ground for a plea in abatement. There is no averment showing that the appellant or those she represents have ever had their day in court as to this claim against the appellees. The latter have in no sense ever been sued upon the claim, and we do not see how it can be said to have been adjudicated. Moreover, we think that even if the attack upon the validity of the appellant's appointment and her right to maintain the action could be made in the manner here attempted, the act of 1891 has changed the rule as to appointments of administrators de bonis non, and that, notwithstanding a former final settlement, the claim would not be barred from future administration. If, under former laws, the estate would be debarred from ever suing upon such an unadministered claim, the act of 1891 was obviously intended to effect a change, and permit the estate to reap the benefit of such assets, notwithstanding the former settlement. It enables the parties interested to have the estate opened up as to such omitted assets, and, if these consist of claims due the estate, to prosecute the same, and this, too, without setting aside the former settlement. It, in effect, provides that, as to any assets not formerly administered, the settlement shall not be final. Whether there are such assets unadministered or not it devolves upon the court to determine when the administrator de bonis non is appointed. When the appointment has been made, the administrator, as we have seen, occupies the same position that a general administrator does. After the appointment the same cannot be attacked in a collateral proceeding, and every presumption will be in favor of its validity. If attacked in a direct proceeding for that purpose, the burden of showing the invalidity thereof will be upon the attacking party. Bowen v. Stewart,...