Bennett v. Bennett

• Decision Date: 25 May 1885
• Citation: 102 Ind. 86,1 N.E. 199
• Parties: Bennett, Adm'x, etc., v. Bennett.
• Court: Indiana Supreme Court

102 Ind. 86

1 N.E. 199

Bennett, Adm'x, etc.,

v.Bennett.

Supreme Court of Indiana.

Filed May 25, 1885.

Appeal from Pulaski circuit court.

John C. Nye and H. Burns, for appellant.

Agnew & Borders, for appellee.

Zollars, J.

The appeal on motion of appellee was dismissed, because the decision or judgment in the case was regarded as one having “grown out of a matter connected with a decedent's estate, as provided in Rev. St. 1881, §§ 2454-2457, both inclusive. Upon the motion to reinstate the case, appellant's counsel contend, very earnestly, that the case does not come within these sections, and that hence appellant had a year within which to appeal, as in ordinary cases under the Code. Appellee commenced this proceeding below by filing what is styled a complaint for a writ of mandate against appellant, as the administratrix of the estate of Nelson B. Bennett, deceased. The substance of the so-called complaint is that appellant, as such administratrix, previous to the filing of the complaint herein, had filed her petition to sell the undivided one-half of a certain lot, and to that proceeding made appellee a party. He appeared and resisted the making of an order of sale on the ground that he and the decedent had been partners; that the lot was partnership property; and that it, or the amount for which it might sell, would be necessary to pay the partnership debts. By agreement of the parties, however, appellant was ordered by the court to sell the undivided one-half of the lot, and out of the first money that might be realized from such sale pay over to appellee the sum of two hundred and fifty dollars, or a sufficient amount to pay the debts of the firm.” Under this order appellant sold the real estate, and at the time this proceeding was instituted had the money derived from the sale.

It is further averred, in the so-called complaint herein, that appellant refused to pay over to appellee any portion of the money, on the ground that he, as the surviving member of the firm of Bennett & Brother, had in his possession sufficient assets of the firm to pay all of the firm debts, and that hence the amount derived from the sale of the undivided one-half of the lot belonged to the estate of the deceased partner, of which estate appellant was the administratrix. There are the further averments that $352.50 of the amount for which the real estate sold, and which was in the hands of the appellant, is required to pay the debts of said firm.

The prayer of the complaint is that a writ of mandate issue against appellant to compel her to pay over to appellee $352.50. Upon this complaint a writ was issued, and upon its return and the appearance of appellant she demurred to the complaint. This demurrer was overruled, and she excepted. After joinder of issues, the case was tried, and the court made an order that appellant, as such administratrix, should, within 10 days, pay over to appellee, as the surviving member of said firm, the sum of $300. From this order and judgment appellant appealed, but did not file the transcript here within 20 days subsequent to the judgment, as required by the above section of the statute, but did file it within the year, as provided in the Code.

If the case comes within the above sections of the statute, the appeal was properly dismissed; otherwise, not. This is the question for decision raised by the motion to reinstate. That the decision below grew out of a matter connected with a decedent's estate must be clear. The lot, the undivided one-half of which appellant, as administratrix, was seeking to sell, and did sell, was partnership property, and subject to the payment of the partnership debts. The decedent owned the undivided one-half of the lot, subject to those debts. If there were no firm debts, or if appellee, as the surviving member, had in his possession firm assets sufficient to pay all of the debts of the firm, the...