Condit v. Winslow

• Decision Date: 25 March 1886
• Citation: 106 Ind. 142,5 N.E. 751
• Parties: Condit, Ex'r, etc., v. Winslow and others.
• Court: Indiana Supreme Court

106 Ind. 142

5 N.E. 751

Condit, Ex'r, etc.,

v.Winslow and others.

Supreme Court of Indiana.

Filed March 25, 1886.

Appeal from Marion circuit court.

Stanton & Scott, for appellant.

E. A. Brown and L. M. Harvey, for appellees.

Howk, J.

On the thirteenth day of December, 1884, appellant, John D. Condit, executor of the last will of Alonzo B. Winslow, deceased, presented to and filed in the court below his final settlement report, duly verified, with accompanying vouchers, for the approval and confirmation of the court. Thereafter, on the twenty-seventh day of May, 1885, proof was made to the satisfaction of the court that notice of the pendency of such report, and of the time set for the hearing thereof, had been given as required by law; and thereupon the appellees, as the heirs at law of such testator, appeared and filed, in open court, their exceptions in writing to the appellant's final settlement report. On the same day the matters arising under the appellant's final report, and appellees' written exceptions thereto, were submitted to the court for trial and determination; and the court having heard the matters aforesaid, and the evidence adduced by the parties, sustained certain of the exceptions, and refused to allow appellant certain credits claimed by him, and ordered that he be held chargeable, as executor, with the sum of $1,586.75; that he be not discharged from the duties of his trust; and that the estate of his testator be not closed and settled,-to all which rulings and orders appellant at the time excepted. His motion for a new trial was overruled by the court, and to this ruling he excepted, and filed his bill of exceptions, and appealed to this court.

Appellant has assigned here a number of errors, but an examination of the record has led us to the conclusion that the only questions we are required to consider and decide properly arise under the alleged error of the court in overruling appellant's motion for a new trial. In his final report, as executor, appellant claimed that he was entitled to certain specified credits in his account with his trust. The court refused to approve or allow the credits thus claimed, and charged the appellant, as executor, with the amount of such credits. The question for our decision, and the only question, may be thus stated: Upon the evidence appearing in the record, and the law applicable thereto, was appellant entitled to the credits claimed by him as executor in his account with his trust?

It may be noted in limine that the only evidence adduced upon the trial, as shown by the bill of exceptions, was the appellant's final settlement report, duly verified by him, in the matter of his testator's estate, and his oral testimony to the effect that he was the executor of such estate, and that the report filed by him for final settlement was true, and the facts therein stated were correctly stated and were true. It was shown by appellant's final report that a very large portion of his testator's estate, wherewith he was chargeable as executor, consisted of a promissory note for $2,000, dated January 31, 1874, executed by the appellant, Condit, and payable one day after date to the order of his testator, Alonzo B. Winslow, then in full life, with 10 per cent. interest until paid. The record does not clearly disclose the date of Winslow's death; but it would seem that a payment of $722.03 on the principal of the note was made on June 9, 1875, to Winslow, in his life-time. Two subsequent payments appear to have been made on the note to appellant as executor, both on August 15, 1879...