Daniels v. Bruce, 21,845

• Citation: 95 N.E. 569, 176 Ind. 151
• Case Date: June 21, 1911
• Court: Supreme Court of Indiana

95 N.E. 569

176 Ind. 151

Daniels, Administratrix,
v.
Bruce et al

No. 21,845

Supreme Court of Indiana

June 21, 1911

From Gibson Circuit Court, O. M. Welborn, Judge.

Action by Kate B. Daniels, as administratrix de bonis non, with the will annexed, of the estate of William D. Daniels, deceased, against Abby D. Bruce and others. From an interlocutory order for plaintiff, she appeals.

Affirmed.

James T. Walker and Henry B. Walker, for appellant.

John W. Brady, Lucius C. Embree, Morton C. Embree, John W. Spencer, John R. Brill, Frank H. Hatfield, J. E. Williamson, E. B. Green, H. M. Phipps and T. G. Risley, for appellees.

OPINION [95 N.E. 570]

[176 Ind. 152] Cox, J.

This is an appeal from an interlocutory order for the sale of real estate, made on the petition of appellant, as administratrix de bonis non, with the will annexed, of the estate of William B. Daniels, her deceased husband, to make assets to pay the debts of his estate.

The proceeding was instituted by James Lauer, as executor of the last will of decedent, in the Vanderburgh Circuit Court, in which court the settlement of the estate was pending, and which had issued to him his letters of executorship. A change of venue was granted on the motion and affidavit of one of the appellees, and the proceeding was sent to the Posey Circuit Court. Upon the written agreement of the parties it was from there sent to the Superior Court of Vanderburgh County. This latter court, not having jurisdiction [176 Ind. 153] of the subject-matter, the proceeding was, on motion, transferred to the Vanderburgh Circuit Court. While pending in that court Lauer resigned, and appellant was appointed administratrix de bonis non, with the will annexed, and substituted as the petitioner. Lauer had obtained a decree of sale, and appellant tried to make sale thereunder, but failed for want of service on some heirs and other parties, being restrained from proceeding under that order. Appellant then filed a petition and made such persons parties to the proceeding. Again, on motion and affidavit of one of the appellees, the venue was changed to the Posey Circuit Court. Subsequent to this, appellant filed in the Posey Circuit Court another petition, designated an amended petition, and summons was issued to each of the parties defendant thereon. On issues formed, the matter proceeded to trial on such petition in that court. Before the completion of the trial, that term of the Posey Circuit Court ended, and, by consent of the parties, the case was taken to the Gibson Circuit Court, and the trial was there finished, before the same judge who was the presiding judge of both the Posey and Gibson Circuit Courts, and the order made from which this appeal is prosecuted.

By proper assignments of error it is first contended by appellant that the Gibson Circuit Court was without jurisdiction to hear and determine the proceedings. It is urged as the basis of this contention, that as that section of the decedents' act authorizing the filing of a petition by an administrator for the sale of real estate of the decedent requires such petition to be filed in the court in which the estate is pending for settlement, and as no provision is made in that act for a change of venue, that court has exclusive jurisdiction of such a proceeding. And it is insisted that no change of venue in such a proceeding can be taken to, or the jurisdiction conferred upon, a circuit court of another county by agreement or other waiver.

The section of the statute authorizing a petition to sell [176 Ind. 154] real estate is § 111 of the decedents' estates act of 1881 (§ 2852 Burns 1908, § 2336 R. S. 1881), and provides as follows: "Whenever an executor or administrator shall discover that the personal estate of a decedent is insufficient to satisfy the liabilities thereof, he shall, without delay, file his petition in the circuit court issuing his letters, for the sale of the real estate of the deceased, to make assets for the payment of such liabilities."

The law governing the same matter, which had long been in force prior to the enactment of the said section, did not specifically provide where the original jurisdiction was lodged, but provided generally that the court having jurisdiction should order the sale. 2 Gavin & Hord p. 506. There arose some confusion under that statute whether the petition should be filed in the first instance in the court of the county where the land was, or in that in which the estate was pending for settlement. Ex parte Shockley (1860), 14 Ind. 413; Williamson v. Miles (1865), 25 Ind. 55; Jones v. Levi (1880), 72 Ind. 586.

The first case in this court involving the jurisdiction of such a proceeding under § 2852, supra, was Vail v. Rinehart (1886), 105 Ind. 6, 4 N.E. 218, in which Howk, J., writing the opinion of the court, said: "Under this section of the statute, it is clear that the circuit court, which issues the letters testamentary or letters of administration upon the estate of a decedent, has exclusive original jurisdiction of a petition for the sale of his decedent's real estate, in whatever county the same may be situate, to make assets for the payment of the liabilities of such decedent's estate." It is to be noted that the learned judge, adhering to his well-known care in using words to convey an exact meaning used the words "exclusive original jurisdiction." We think he used the word "original" as limiting the exclusiveness of the jurisdiction in the institution of the proceeding, and at least leaving open the question whether it might not, by change of venue, be subsequently submitted to the jurisdiction of the court of [176 Ind. 155] another county, having jurisdiction of the general subject-matter of decedents' estates. The question then arises, Is there authority for granting a change of venue in such a proceeding from the county where the exclusive original jurisdiction is lodged? The identical question seems never to have [95 N.E. 571] been decided by this court. That the practice of granting such change of venue has been more or less general throughout the State has become known to this court through the examination of the records of appealed cases. The latest instance of this practice is Ditton v. Hart (1911), 175 Ind. 585, 95 N.E. 119. Doubtless many land titles throughout...