Diedrich v. Way

• Decision Date: 10 April 1918
• Docket Number: No. 9535.,9535.
• Citation: 67 Ind.App. 375,119 N.E. 223
• Parties: DIEDRICH et al. v. WAY.
• Court: Indiana Appellate Court

67 Ind.App. 375

119 N.E. 223

DIEDRICH et al.

v.WAY.

No. 9535.

Appellate Court of Indiana, Division No. 1.

April 10, 1918.

Appeal from the Circuit Court, La Porte County; James F. Gallaher, Judge.

Proceedings by Johanna Diedrich and another to revoke letters of administration issued to Othie Way, administrator with the will annexed of the state of Henry Diedrich, deceased. Judgment for Othie Way, and petitioners appeal. Affirmed.

Sutherland & Smith, of La Porte, for appellants. Frank E. Osborn, Lee L. Osborn, and Kenneth D. Osborn, all of La Porte, for appellee.

FELT, J.

Appellants, Johanna Diedrich and Henry Diedrich, Jr., instituted proceedings in the La Porte circuit court to revoke the letters of administration issued to appellee, Othie Way, administrator with the will annexed of the estate of Henry Diedrich deceased. Issues were formed by an amended petition in two paragraphs, which were answered by general denial. The gist of the petition was that there was no necessity for administration. The case was tried by the court, a special finding of facts was duly made, and conclusions of the law stated thereon in favor of appellee, to which appellants duly excepted. Judgment was rendered upon the conclusions of law from which appellants have appealed.

The only error assigned is that the courts erred in each of its conclusions of law. The substance of the finding of the facts is as follows:

On April 1, 1913, Henry Diedrich died testate in La Porte country, Ind. By his last will and testament he provided for the payment of his just debts, the expenses of his last sickness and funeral, and disposed of the residue of his estate in substance as follows: He devised to his wife, Johanna Diedrich, all of his personal property and real estate during life, with power to sell the live stock at her discretion at any time, without any order of court. In item 3 he bequeathed $50 to each of three children in addition to the property given them by item 4 of the will. By item 4 he devised and bequeathed the residue of his estate to his children, 14 in number, in equal parts. By the seventh item he named appellants as executors of his last will and testament. The other provisions of the will are unimportant for the purposes of this appeal.

The court also found that Johanna Diedrich was the widow of decedent, and that Henry Diedrich, Jr., was his son; that the will was duly probated in the La Porte circuit court on April 4, 1913; that immediately after the funeral appellants and a part of the children of decedent, including Anna Hollandsworth, Edward Bevridge, husband of Minnie Bevridge, and Mary Linard went to the office of W. H. Becher, where the latter read the will of decedent in their presence and hearing; that after the will was so read Ann Hollandsworth and Mary Linard left the office, and thereafter said Becher stated to the appellants that as there were no debts to be paid they need not qualify as executors, and they did not do so at any time; that the aforesaid widow paid the expenses of the sickness and funeral of decedent; that she collected debts due the estate, aggregating $125, but used all of such money in paying the debts and expenses of the estate as aforesaid; that she also bought, and paid for, with her own money, a monument for decedent, costing $550, that on March 27, 1914, Anna Hollandsworth, Minnie Bevridge, and Mary Linard, children of the deceased, and beneficiaries under the aforesaid will, filed their petition in the La Porte circuit court, asking for the appointment of Othie Way, as administrator, with the will annexed of the estate of Henry Diedrich, deceased, in which petition they alleged that the executors named in the will had failed to qualify as such, and that the widow of decedent was handling and disposing of the personal property left by decedent; that their interest in the estate was such that an administrator with the will annexed should be appointed; that no notice was given appellants of the filing of said petition, and the court on the day said petition was filed acted thereon and appointed Othie Way administrator as aforesaid; that he duly qualified on said day, and thereafter on April 10, 1914, appellants filed their petition to revoke the...