Butler University v. Danner

• Decision Date: 02 December 1943
• Docket Number: 17113.
• Citation: 51 N.E.2d 487,114 Ind.App. 236
• Parties: BUTLER UNIVERSITY v. DANNER et al.
• Court: Indiana Appellate Court

51 N.E.2d 487

114 Ind.App. 236

BUTLER UNIVERSITY v. DANNER et al.

No. 17113.

Appellate Court of Indiana, in Banc.

December 2, 1943

Johnson & Zechiel, of Indianapolis, for appellant.

Louis B. Ewbank, of Indianapolis, for appellee.

DRAPER Judge.

In his petition for rehearing the appellee Danner insists that the allowances in question were made upon the filing of a current report and that it was not, as stated in our opinion , "a final allowance of fees made in anticipation of immediate final settlement of the estate", for the reason that certain claims filed against the estate remained unpaid at the time of the entry of the judgment.

It does not appear to us that the paper in question was intended to serve the purpose of a current report. It mentions no unpaid claims. It is entitled "Executor's Petition to Fix Allowances for Him and Attorney". It recites that the executor has paid all funeral expenses, all debts of the decedent, the legacies under the will, and costs of administration with a few minor exceptions which he is prepared to pay when definitely ascertained, and that nothing remains to be done except to ascertain the amount of compensation for himself and his attorney, pay same with balance of costs and expenses of administration and make final distribution. The appellant's condensed recital of the evidence indicates that claims filed had been allowed and paid and a reference to the transcript indicates the following testimony by Danner with reference to claims:

"Q. You remember what claims were filed against the estate? A. This lady Mrs. Lankford filed one claim for services in collecting rents down at the Virginia Apartment.

"Q. What other claims were filed against the estate? A. I have filed one claim.

"Q. Well anybody else? A. Well various kinds of bills--I don't remember any other claims.

"Q. Well were they not all filed as claims against the estate? A. Yes.

"Q. Why didn't you pay them before they were filed? A. Because I thought they ought to have been sworn to, and had not been sworn to, before I paid them.

"Q. You asked them to file claims? A. Yes.

"Q. And then you allowed the claims and paid them? A. Yes."

Something was said on oral argument to the effect that the appellee Danner, after the filing of his petition for the allowance of fees and after the filing of appellant's objections thereto, had himself filed a large claim against the estate. Neither the nature of the claim, appellee's reasons for delaying its filing, nor the fact that it was pending unpaid was in any way brought to the attention of the trial court in connection with the representations in the petition or the hearing thereon. The appellee chose to go to trial on the petition as filed, and if we are to assume, in spite of appellee's testimony, perhaps upon the...