Bowen v. Stewart

• Decision Date: 17 June 1891
• Docket Number: 15,688
• Citation: 28 N.E. 73,128 Ind. 512
• Parties: Bowen et al. v. Stewart, Administrator
• Court: Indiana Supreme Court

28 N.E. 73

128 Ind. 512

Bowen et al. v. Stewart, Administrator

No. 15,688

Supreme Court of Indiana

June 17, 1891

Original Opinion of January 9, 1891, Reported at: 128 Ind 507.

OPINION

Coffey, J.

An earnest petition for a rehearing has been filed in this cause, in which it is insisted that the opinion heretofore handed down does not dispose of all the questions presented by the record. It is insisted that the court should have set out the complaint and answer, and should have discussed and decided the questions arising thereon.

The complaint consists of four paragraphs, is quite voluminous and as no question as to its sufficiency was presented to the circuit court, nor its sufficiency questioned here, no good purpose would be subserved by setting it out. Indeed, to do so would uselessly encumber the opinion in the cause. Counsel are in error in their assumption that it is the constitutional duty of this court to make a statement of the questions presented by the several paragraphs of the complaint and render a decision thereon. The duties of this court in matters of this kind has long been settled by adjudicated cases. Buskirk Prac., p. 11; Willets v. Ridgway, 9 Ind. 367; Judah v. Trustees, etc., 23 Ind. 272.

In the latter case cited numerous reasons were assigned for a new trial, but the court refused to set them out in detail, and said: "The question in the record is, Did the court below err in refusing a new trial? We have decided that question and have, we think, therefore, done all that we are required to do. The reasons relied upon for a new trial, we regard not as questions in the record, but arguments upon the question, to be considered so far as may be necessary to decide the question."

It is earnestly insisted by the appellants that the question as to whether the heirs to an estate, being of full age, may or may not settle such estate without formal administration without interference from strangers, is fairly presented by the record in the cause, and should have been decided.

As to whether this question is presented by the record depends upon whether Stewart, the appellee, is to be regarded as a stranger. Assuming, without deciding, that the record presents this question, we proceed to its consideration. It is claimed that the question arises on demurrer to the answer. So much of the several paragraphs of the complaint as is necessary to an understanding of the question now to be considered, alleges that Abner H. Bowen died, intestate, on the 10th day of February, 1890, leaving the appellants, who are all of full age and competent to contract, as his only heirs at law; that he left no debts except a few small claims due to merchants, and a small amount due to attorneys as fees; that after his death the appellants agreed to settle the estate and pay the debts without administration; that while they were thus settling said estate the appellee, who is neither a creditor nor a relative, but a stranger to the estate, on the 23d day of April, 1890, took letters of administration on said estate without the knowledge of the appellants; that there was no necessity for administration upon said estate; that the appointment of the appellee was not made at the request of any one legally interested in said estate.

Omitting to demur to the several paragraphs of the complaint the appellee answered, among other things, that he was the county treasurer of Carroll county, the county in which Abner H. Bowen resided at the time of his death, and in which he left an estate to be administered; that at the time of his death said Abner H. was indebted in a large sum, part of which the appellants had refused to pay; that he held mortgages on fifty thousand acres of land in Carroll and adjoining counties, which mortgages were unpaid; that he was indebted to the city of Delphi in the sum of $ 20,000 for taxes due on personal property which he had failed to list, and that he was indebted to the county of Carroll in the sum of $ 40,000 for taxes due on personal property which had never been listed for taxation.

Assuming, without deciding, that the petition upon which the appellee was appointed was defective in not stating that the appellee had an interest in the administration of the estate of Bowen, or the ground upon which he sought to take letters, still his appointment was not void. Where a petition, or notice, is necessary to call into exercise the jurisdiction of a court, or other tribunal, if some petition is filed, or notice given, however defective, if the court adjudges it sufficient, and acts upon it, the subsequent action of the court, based upon such petition, or notice, is not void. Pickering v. State, etc., 106 Ind. 228, 6 N.E. 611; McCormick v. Webster, 89 Ind. 105; Stout v. Woods, 79 Ind. 108; State v. Wenzel, 77 Ind. 428; Barber, etc., Co. v. Edgerton, 125 Ind. 455, 25 N.E. 436, and authorities cited.

It can not well be doubted that the heirs to an estate, who are of full age and capable of contracting, may settle such estate without regular administration, free from the interference of third parties, provided the estate owes no debts, and there is nothing to be done by an administrator except to divide such estate among the several heirs. So, they may settle such estate without administration where there are debts, provided the creditors do not object to such settlement, and a court of equity will relieve them from the interference of third persons who procure letters of administration, without their consent, where there is no necessity for such letters. Taylor v. Phillips, 30 Vt. 238; Hays v. Vickery, 41 Ind. 583; Owings v. Bates, 9 Gill 463; Babbitt v. Bowen, 32 Vt. 437; Henderson v....