Carver v. Lewis
| Decision Date | 10 October 1885 |
| Docket Number | 12,073 |
| Parties | Carver v. Lewis, Administrator |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled January 6, 1886.
From the Putnam Circuit Court.
The judgment is affirmed, at appellant's costs.
H. H Mathias and J. B. Black, for appellant.
D. E Williamson and A. Daggy, for appellee.
By this action appellant is seeking to have a claim allowed against, and collected from the estate of Jacob Durham, deceased, of which estate appellee is administrator. She filed an amended complaint in the circuit court, to which a demurrer was sustained. For a review and reversal of that ruling she prosecutes this appeal.
The conclusion we have reached as to the correctness of that ruling renders it unnecessary for us to set out the entire complaint, either at length or in substance. So much of it as presents the controlling question may be summarized as follows: In 1847, Jacob Durham advanced to his son, Benjamin A. Durham, a tract of land, worth about $ 3,500, and surrendered to him its possession. He did not convey the legal title, but treated the land as the absolute property of Benjamin A. Benjamin A. took possession of the land, and occupied it until 1860, in the meantime having expended upon it $ 4,000 in the way of valuable and lasting improvements. On the 9th day of January, 1860, Benjamin A. entered into a contract with one Williams for an exchange of lands, by the terms of which he was to cause a legal title to be conveyed to Williams, and Williams was to give his notes and mortgage for $ 2,500, as the difference in value between the tracts of land. On that day, at the request of Benjamin A., Jacob Durham conveyed to Williams the legal title to the lands so occupied by Benjamin A., and, over his objections and protest, took the notes and mortgage from Williams in his own name, and took and held the possession of the same. Benjamin A. died intestate, in June, 1860, leaving appellant, as his widow, and four minor children. In August, 1860, Jacob Durham was appointed administrator of the estate of Benjamin A. He proceeded with the administration of the estate, closed it up, and was finally discharged in June, 1862. It is averred in the complaint that he paid all the debts against the estate, and distributed the residue to the heirs.
It is charged that he failed to inventory the said notes and mortgage as a part of the estate, or in any manner refer to or account for them in the administration of the estate. While administrator, he collected $ 130 upon the notes, and afterwards $ 1,200. Jacob Durham died in 1864. His administrator took possession of the notes and mortgage as a part of his estate, and collected the balance due upon them.
It is further charged in the complaint, and insisted upon in argument, that by reason of the facts above stated, Jacob Durham held the notes and mortgage as the trustee of Benjamin A.
It will be observed that all debts against the estate of Benjamin A. Durham were paid, distribution of the surplus was made, a final report was filed, a final accounting was had, the estate was settled and closed, and Jacob Durham, as administrator, was discharged in June, 1862.
No objection is shown to have been made to the final report or discharge of Jacob Durham as such administrator; no effort was made to recover from him the notes and mortgage, or the money collected upon them, nor has there been any other effort to collect the amount from his estate until this action was instituted in 1882. The final report of Jacob Durham as such administrator has not been set aside, nor has there been any effort to set it aside. Such being the case, the important and controlling question is, can appellant maintain this action notwithstanding such final settlement?
We could not presume, in order to strengthen appellant's complaint, that at the time of the final settlement she was under legal disability, because it appears from the complaint that at the time this action was commenced, and for some three years prior thereto, she was a married woman; and if we could, it would be of no avail to her in this case, because she is not proceeding to have that final settlement set aside, but is proceeding regardless of it.
The law in force during the administration of the estate required, as it does now, that the administrator should make a full inventory of the personal estate of the decedent, within his knowledge, including all demands in favor of the estate, with a particular description thereof, etc., and that he should return such inventory to the county clerk, and take an oath to be endorsed upon, or annexed to it, that the same was a true statement of all the personal estate of the deceased which had come to his knowledge. 2 R. S. 1876, pp. 505, 508, sections 34, 44, 46.
From such inventory the widow had the right to select articles to the amount of five hundred dollars. It was the duty of the administrator to collect all claims and demands of every nature due to the estate, and report to the court at stated times. Provision was also made for a final accounting and final settlement of the estate, and distribution to the heirs. All of these matters, and the doings of the administrator, became matters of record, open to the inspection of all interested.
The above mentioned provisions of the statute were followed by section 116, which provided that, "After the debts and legacies of an estate and charges of administration are paid, and all claims in favor of such estate are disposed of according to law, the executor or administrator shall be discharged from the further administration thereof, and no final...
To continue reading
Request your trial