Coulter v. Bradley

• Decision Date: 06 October 1904
• Docket Number: 20,381
• Citation: 71 N.E. 903,163 Ind. 311
• Parties: Coulter et al., Executors, v. Bradley, Special Administratrix
• Court: Indiana Supreme Court

71 N.E. 903

163 Ind. 311

Coulter et al., Executors, v. Bradley, Special Administratrix

No. 20,381

Supreme Court of Indiana

October 6, 1904

From Clinton Circuit Court; J. F. Neal, Special Judge.

Action by Anna Bradley as special administratrix of the estate of Frank Bradley, deceased, against David A. Coulter and Alexander B. Given as executors of the will of Hiram H Bradley, deceased. From a judgment for plaintiff, the defendants appeal. Transferred from the Appellate Court under subdivision one, § 1337j Burns 1901.

Affirmed.

H. C Sheridan, C. G. Guenther and Braden Clark, for appellants.

W. R Moore and E. D. Salsbury, for appellee.

OPINION

Monks, J.

Appellee filed a petition in the court below to establish her intestate's claim to a legacy alleged to have been given by the last will of Hiram H. Bradley, deceased. The court made a special finding of facts and stated conclusions of law thereon in favor of appellee, and rendered final judgment allowing the amount of said legacy.

The errors assigned and not waived are: "(1) The petition of appellee does not state facts sufficient to constitute a cause of action; (2) the court erred in sustaining the demurrer of appellee to the first and fourth paragraphs of answer; (3) the court erred in each conclusion of law."

The sufficiency of appellee's complaint is challenged for the first time in this court. It appears from the record that after appellants, as executors of the last will of Hiram H. Bradley, deceased, had filed their final report in the court below, appellee appeared in said court, and filed a petition "in the matter of said estate," alleging that Frank Bradley, of whose estate she was special administratrix, was a legatee under the fourth item of the will of appellants' testator, which reads as follows: "I give and bequeath to my nephew Frank Bradley, son of my brother John Bradley, the sum of $ 1,000;" that her intestate was the Frank Bradley mentioned in said item; that the debts of said Hiram H. Bradley are paid, except a legacy of $ 1,000 to Philander John Bradley, a judgment for which was recovered against said executors on July 3, 1902, and that there is now at least $ 10,000 belonging to said estate in the hands of said executors, and said estate is unsettled, and now pending in this court.

It is evident that this is a proceeding under § 2562 Burns 1901, which provides that "When a final settlement account shall have been filed, and notice given to the heirs, devisees and legatees to prove their claims to the surplus, as hereinbefore provided, they shall appear before the court, in person or by attorney, and, in case of infants or persons of unsound mind, by their guardians, and make proof of their heirship or other title to such surplus."

It is contended by appellant that the petition or complaint is insufficient, because it is not alleged "that there was personal property in the custody or control of appellants--executors--from which they could pay the general legacies, and it contains no averments that would warrant the court in charging the executors with the payment thereof in the absence of personal estate. In other words, the petition must of itself advise the court that there is estate applicable to the payment of the legacy in controversy"--citing Duncan v. Wallace (1888), 114 Ind. 169, 16 N.E. 137; Coulter v. Bradley (1903), 30 Ind.App. 421, 66 N.E. 184.

In Fickle v. Snepp (1884), 97 Ind. 289, 49 Am. Rep. 449, a complaint was filed in a court having probate jurisdiction against the administrator with the will annexed to enforce the payment of a legacy, and it was argued that the complaint was insufficient because facts were not alleged showing that said administrator had money in his hands sufficient to pay the legacy. This court held that such allegations were not necessary to the sufficiency of the complaint. The court said: "All that a complaint need do is to state facts showing a right to an allowance; it need not anticipate defenses, nor show the existence of assets. * * * We do not find any case warranting the conclusion that a legatee is bound to aver that the administrator has assets, or that he is in all cases bound to wait until the estate is finally settled and the administrator discharged before he can have the amount of the legacy established by an order of allowance, and we are satisfied that there is no reason for such a conclusion. The cases cited by the appellants all agree that it is the duty of the administrator to pay the legacy; and if this be true it would seem clear that this duty should be performed while the representative capacity exists." All that is required of heirs and legatees by said § 2562, supra, is that they appear and prove their heirship or other title to the estate. The final report of appellants as executors of the last will of Hiram H. Bradley, deceased, was before the court below, and appellee filed said petition as a part of said proceedings.

One of the questions to be determined under § 2562, supra, was the distribution of said estate under the will of Hiram H. Bradley, deceased. Whether any pleadings on the part of heirs and legatees are required under said § 2562, supra, we need not determine, for, even if the same are necessary under the liberal rules which obtain in claims against estates, we think said petition is good as against an attack made for the first time in this court. Fickle v. Snepp, supra.

Duncan v. Wallace, supra, cited by appellants, was a suit by a legatee against devisees of real estate to charge the same with the payment of a legacy, and has no application on the point cited to cases like the one before us, against executors. So far as Coulter v. Bradley, supra, may be deemed to sustain appellants' said contention, it is disapproved.

The second, third, and fourth paragraphs of answer were answers of former...