Continental Nat. Bank v. Heilman

• Decision Date: 04 April 1898
• Docket Number: 451.
• Parties: CONTINENTAL NAT. BANK v. HEILMAN et al.
• Court: U.S. Court of Appeals — Seventh Circuit

86 F. 514

CONTINENTAL NAT. BANK v. HEILMAN et al.

No. 451.

Circuit Court, of Appeals Seventh Circuit.

April 4, 1898

Addison C. Harris, for appellant.

C. A De Bruler and Chas. W. Smith, for appellees.

Before WOODS, JENKINS, and SHOWALTER, Circuit Judges.

WOODS Circuit Judge.

The bill in this case was brought against the widow and children of William Heilman, deceased, to charge them, as legatees or devisees, with the amount due upon a promissory note for $100,000 alleged to have been executed by the deceased jointly with David J. Mackey, to the appellant, the Continental National Bank. Alfred W. Emory was made a party defendant because he holds property left by the deceased as the trustee for the other defendants. Mackey was also made a party, but was let out on his demurrer to the bill. Issue was joined upon voluminous answers, of which no statement is necessary. The equity of the case was found to be with the defendants, on different grounds stated in the opinion of the court (Bank v. Heilman, 81 F. 36), and a decree was entered dismissing the bill. Other questions aside, the last ground stated, that under the circumstances the failure to present a claim to the executor for allowance or rejection during the course of the administration of the estate was a bar to a suit in equity, commands our approval. The contention of the appellant is that the right to compel payment by heirs or devisees of a debt of the deceased is in Indiana a purely statutory right, which will be enforced by the federal courts in accordance with the terms of the statute which creates the right, and that by the statute a creditor out of the state for six months before the final settlement of the estate may bring suit within two years after such settlement. Rev. St. 1894, Sec. 2597 (Rev. St 1881, Sec. 2442). The statute reads:

'The heirs, devisees and distributees of a decedent shall be liable to the extent of the property received by them from such decedent's estate to any creditor whose claim remains unpaid, who six months prior to such final settlement was insane, an infant, or out of the state, but such suit must be brought within one year after the disability is removed: provided that such suit upon the claim of any creditor out of the state must be brought within two years after such final settlement.'

Whether the supreme court of Indiana has regarded this provision as creative, or simply declarative, of a right which existed in equity, and would be enforced by the courts of the state if there were no such enactment, is not left clear by the court's decisions and dicta touching the point. In Stevens v. Tucker, 87 Ind. 109, where the plaintiffs had not been 'insane, an infant, or out of the state,' the cause of action had arisen after, and, the possibility of its arising being unknown, it could not have been presented to the administrator before the settlement of the estate. The court, after reviewing its earlier decisions, said:

'It is plain that their action is not founded upon any statute. * * * But are they, though their claim is thus meritorious, without remedy? * * * It need not be said that it is beyond the power of the legislature to deprive the appellees of all remedy, but it may well be presumed that it was not intended by the legislature, in the enactment of the statutory provisions under discussion, to deprive any one of a well-founded right by forbidding a remedy therefor.'

In Fisher v. Tuller, 122 Ind. 31, 23 N.E. 523, the plaintiff had been 'out of the state,' but the suit was not brought within two years after the final settlement of the debtor's estate; and in disposing of the case the court said:

'The right of the appellant to prosecute an action against the appellee is statutory. * * * We can see no escape from the plain language of this statute. * * * The statute which gives the right contains its own limitations, and we can ingraft no exceptions upon it. * * * If there were a common-law right to hold the heir liable for the debts of an ancestor, there might be some plausibility in appellant's argument, but there is no such common-law right. Woerner, Adm'n, Sec. 574. The appellant must therefore take the statutory right as it is bestowed, for he has no other.'

No reference was made to the earlier cases, and it is contended, with at least apparent plausibility, that what was said in respect to the right of action being purely statutory was unnecessary, since, whatever its character, the action was barred because not brought within the two years prescribed by the statute.

In Stults v. Forst, 135, Ind. 297-307, 34 N.E. 1125, is to be found this language:

'We do not say that there may not be cases where equity would interfere in favor of a claim brought after the settlement of an estate, even if the claimant were not authorized by the statute to bring suit against the heirs or devisees.'

In the still later case of Bank v. Culbertson (Ind. Sup.) 45 N.E. 657, the right to enforce 'the liability of the decedent against his property after his estate is settled' was again said not to exist except by statute but it is stated in the brief for appellee that the...