Cunningham v. Cunningham

• Decision Date: 18 April 1884
• Docket Number: 11,192
• Citation: 94 Ind. 557
• Parties: Cunningham, Administrator, v. Cunningham
• Court: Indiana Supreme Court

94 Ind. 557

Cunningham, Administrator, v. Cunningham

No. 11,192

Supreme Court of Indiana

April 18, 1884

From the Harrison Circuit Court.

Judgment affirmed, at the personal costs of the appellant.

B. P Douglass and S. M. Stockslager, for appellant.

S. J Wright, for appellee.

OPINION

Hammond, J.

The appellant, as administrator of the estate of William Cunningham, deceased, filed his report, with vouchers, in the court below for the final settlement of the estate. It appears from the report that the estate was settled as insolvent, and that the appellant paid on claims against it $ 153.58 in excess of assets which came to his hands. The report also showed that there was a balance unpaid upon a mortgage on land, which had been executed bye the decedent and his wife for purchase-money; and also an unpaid claim allowed the decedent's widow for money advanced by her to the administrator to aid the settlement of the estate. This mortgage and claim, the administrator stated in his report, could not be paid, as all the assets of the estate were exhausted.

The appellee, who is the widow of the decedent, filed her exceptions to the report, objecting to its confirmation, on the grounds, as she charged, that a sufficiency of assets came to the administrator's hands to pay all claims against the estate except the general debts; that the claim referred to as allowed her was one that should have been paid before the general debts; that the mortgage mentioned, upon which there was a balance due of about $ 400, was upon real estate which had been assigned to her as the decedent's widow; and that the administrator, instead of paying her claim and discharging her land from the mortgage, had used money of the estate sufficient to have paid said claim and mortgage in the payment of general debts. She further averred in her exceptions that the administrator had failed to charge himself with interest collected on claims due the estate, and had paid claims that were not valid demands against it. The final report and exceptions to it were filed a short time before the decedents' act of 1881 went into force. Soon after that act took effect, the court, by consent of parties, made an order referring the final report and vouchers to a master commissioner "for his examination and finding thereon, and that said master commissioner proceed to hear said final settlement account and vouchers, and report his finding thereon in writing to this court at its next term, for its action." At the following term the master commissioner made his report, containing a special finding of facts, with conclusions of law thereon. Respecting the mortgage and the appellee's claim, the facts were found as stated in her exceptions, except that the administrator was entitled to a credit on the claim for taxes paid on the appellee's land after the death of the decedent. It was also found that the administrator had paid on general debts, out of the assets of the estate, an amount more than sufficient to have paid the balance on said mortgage and claim. The mortgage referred to was executed to, and held by, one Fulenwider. The conclusions of law, as stated in the report of the master commissioner, were as follows:

"Upon the whole case, I find that the final settlement of the administrator ought not to be approved, and that he ought not to be discharged in accordance with the prayer thereof; that he ought to pay to Robert H. Fulenwider the amount remaining unpaid on his mortgage debt, or pay into court a sum sufficient to pay the same, and that he ought to pay to Mary Cunningham, the widow, the amount of her preferred claim as allowed against said estate, less $ 35.71, her portion of the taxes, which would be $ 97.60, with interest from the date of said allowance; these two items being less in amount than was paid out by said administrator on unpreferred claims. I further find that the administrator ought to pay the costs of this proceeding.

(Signed) W. M. Tracewell

"Master Commissioner."

The appellant filed six exceptions to the master commissioner's report. The first, second and third of the exceptions questioned the correctness of certain facts specially found. The fourth exception to the report was the failure of the master commissioner to present the evidence upon which his findings were based. The fifth and sixth exceptions were to the conclusions of law. The court overruled...