Bristow v. McClelland

• Decision Date: 19 October 1889
• Docket Number: 13,585
• Citation: 22 N.E. 299,122 Ind. 64
• Parties: Bristow, Administrator, v. McClelland, Administrator, et al
• Court: Indiana Supreme Court

22 N.E. 299

122 Ind. 64

Bristow, Administrator, v. McClelland, Administrator, et al

No. 13,585

Supreme Court of Indiana

October 19, 1889

Petition for a Rehearing Overrule Feb. 6, 1890.

From the Clinton Circuit Court.

Judgment affirmed.

J. N Sims and M. Bristow, for appellant.

S. O Bayless, J. V. Kent and I. W. Merrit, for appellees.

OPINION

Coffey, J.

On the 4th day of April, 1885, the appellant, as administrator of the estate of Williamson Farrar, deceased, filed a petition in the Clinton Circuit Court praying for an order to settle the estate, represented by him, as insolvent. The appellee and others, creditors of said estate, resisted the granting of such order, upon the alleged ground that the estate was solvent, and filed an answer charging that the appellant had wasted the estate and had taken credit, in his reports, for a large sum on false and fraudulent vouchers.

Pending these proceedings the court entered an order requiring the appellant to file a report showing the actual condition of the trust in his hands. Pursuant to this order the appellant filed a report which he claimed was a compliance with the order of the court. To this report the appellees filed exceptions, and also filed a petition for the removal of the appellant from the trust, charging therein that he had misappropriated the trust funds, was insolvent and unable to repay the same, and that they would be unable to collect their claims in any other manner than by suit on his bond. Upon issues formed the cause was tried by the court, and evidence taken by a short-hand reporter. Without objection from either party, the cause, with the evidence taken, was referred to the Hon. Joshua Adams as a special master commissioner to hear further proof and to report to the court the condition of the trust. The commissioner filed his report showing that there was in the hands of the appellant the sum of $ 1,521.07, which he had held since the 17th of day June, 1884; and charging the appellant six per cent. interest on the same from that date which, added to the principal, left in his hands unaccounted for the sum of $ 1,723.40.

After hearing and considering the evidence, the court made a finding that there was that sum in the hands of the appellant, and entered an order that the estate should be settled as insolvent, and that he should pay the money in his hands into court within thirty days to be applied to the costs of administration and the liquidation of the claims against said estate.

The appellant filed a motion and reasons for a new trial, which was overruled and he accepted. He assigns as error here:

First. That the circuit court erred in overruling the motion for a new trial.

Second. That the court erred in refusing to consider the exceptions of the appellant to the report of the master commissioner.

Third. That the court erred in adopting and confirming the report of the master commissioner, and in making the same the basis of the final decree.

Fourth. That the court erred in rendering its order and decree in ordering the appellant to pay into court, to be applied on the liabilities of the estate, the money found to be in his hands, within thirty days.

The only matters urged by the appellant in his brief relate to supposed errors in the report of the master commissioner and the order of the court requiring the appellant to pay into court the money in his hands, as administrator, to be applied to the satisfaction of the costs of administration, and the payment of claims against the estate.

In the report of the master commissioner it is found that by a statement of the condition of said estate, filed by the administrator, he had collected of the notes and accounts charged to him on the inventory, the sum of $ 2,333.18. It is claimed by the appellant that this finding is erroneous, and that the true amount shown by the statement to have been collected is $ 1,857.60. It is true, that the items of...