Carver v. Lewis

• Decision Date: 13 October 1885
• Citation: 2 N.E. 714,105 Ind. 44
• Parties: Carver v. Lewis, Adm'r
• Court: Indiana Supreme Court

105 Ind. 44

2 N.E. 714

Carver

v.Lewis, Adm'r¹

Supreme Court of Indiana.

Filed October 13, 1885.

Appeal from Putnam circuit court.

H. H. Mathias, for appellant.

Williamson & Daggy, for appellee.

Zollars, J.

Appellant instituted this action to have a claim allowed against and collected from the estate of Jacob Durham, deceased, of which estate appellee is administrator. He filed an amended complaint in the circuit court, to which a demurrer was sustained. He seeks by this appeal to have that ruling reversed.

The complaint, in the main, is the same as the complaint in the case of Carver v. Lewis, ante, 705. We need not, therefore, set it out here. There is this difference: Here the appellant is seeking to recover, as the assignee of two of the children of Benjamin A. Durham, deceased. The assignment was made to him by said children in 1879, after they had become of age. By this assignment he claims to have become the owner of the one-third of the amount collected upon the Williams notes by Jacob Durham and his administrator. There are these further and different averments: That during his life, and while he was administrator of the estate of Benjamin A. Durham, Jacob Durham was the guardian of the minor children of said Benjamin A., and that he did not turn over to himself as such guardian, nor did he as such guardian receive, any portion of said notes, or the money collected upon them. He died while acting as such guardian. Whether or not a final report was made of, or a final settlement was had of, his administration as such guardian is not shown by any averments in the complaint. We are unable to see how these different averments can make any difference in the results in the two cases. The children were not entitled to any portion of the notes, nor the money collected upon them, except as they should receive them or it as a part of their father's estate, and through the administration of that estate, because, as the complaint shows, there was an acting administrator of the estate, a widow surviving, and debts against the estate. In such a case neither the children nor their guardian could prosecute an action against the holder of the notes or money. Walpole's Adm'r v. Bishop, 31 Ind. 156;Bearss v. Montgomery, 46 Ind. 544;Ferguson v. Barnes, 58 Ind. 169.

The approval of the final report of Jacob Durham as the administrator of the estate of Benjamin A., and the final settlement of the estate, was an adjudication as against interested p...