Carver v. Lewis

• Decision Date: 10 October 1885
• Citation: 104 Ind. 438,2 N.E. 705
• Parties: Carver v. Lewis, Adm'r.
• Court: Indiana Supreme Court

104 Ind. 438

2 N.E. 705

Carver

v.Lewis, Adm'r.¹

Supreme Court of Indiana.

Filed October 10, 1885.

Appeal from Putnam circuit court.

H. H. Mathias, for appellant.

Williamson & Daggy, for appellee.

Zollars, J.

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 the possession of it. 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 mean time having expended upon it $4,000 in the way of valuable and lasting improvements. On the ninth 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, and was finally discharged in June, 1862. It is averred in the complaint that he paid all of 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 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 charged in the complaint, and insisted 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 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, nor 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 disabilities, 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 the 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 deceased 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 indorsed upon or annexed to it, that the same was a true statement of all personal estate of the deceased which had come to his knowledge. 2 Rev. St. 505-508, §§ 34, 44, 46. From such inventory the widow had the right to select articles to the amount of $500. 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...