Dillman v. Barber
| Decision Date | 08 May 1888 |
| Citation | 114 Ind. 403,16 N.E. 825 |
| Parties | Dillman v. Barber. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Miami county; Lyman Walker, Judge.
Solomon F. Dillman filed a petition against William Barber, administrator cum testamento annexo, to set aside a final settlement of the estate. Judgment for defendant. Plaintiff appeals.
John L. Farrar, Josiah Farrar, and Wm. C. Farrar, for appellant. Effinger & Loveland, for appellee.
The material facts, as shown by the pleadings, so far as they need be stated here, are as follows: On the 1st day of January, 1884, appellee, William F. Barber, was appointed administrator with the will annexed of the estate of Elizabeth Woodhouse, deceased. On the 19th day of March, 1884, appellant filed a claim for $2,000 against the estate. The claim was submitted for trial on the 3d day of January, 1885; and, on account of unexpected deficiencies in the testimony, appellant was compelled to and did dismiss it without prejudice. On the 2d day of March, 1885, the administrator filed his final report in the clerk's office, and gave the proper notice, by posting and by publication, that the same was pending for action at the March term of the court On the 20th day of March, 1885, being 10 days before the beginning of the March term of the court, appellant refiled his claim. On the 7th day of April, 1885, being the eighth judicial day of the March term, the final report was approved, the estate was closed, and the administrator was discharged, “over the oral objections of appellant's attorneys, and notice that his claim was on file, and would be for trial at the next term of the court.” On the 1st day of June, 1885, being at the June term of the court, appellant filed his verified petition to have the final settlement set aside, so that he might prosecute his claim to judgment, and collect the amount of the allowance from the estate. The rulings upon the pleadings were such as to deny the relief asked by appellant, and to leave the final settlement undisturbed.
One of the arguments by appellee's counsel is based upon section 2310, Rev. St. 1881, as amended by the act of 1883, (Acts 1883, p. 153, § 5,) which provides that, after the expiration of one year from the giving of notice by the administrator of his appointment, claims against the estate shall be barred, unless filed at least 30 days before the final settlement of the estate. We need not further notice that argument, as we have discovered no averment in the pleadings as to the time such notice was given by the administrator. As to the scope and effect of the statute, however, see Roberts v. Spencer, 112 Ind. 81, 13 N. E. Rep. 129; Johnson v. Moore, 112 Ind. 91, 13 N. E. Rep. 106. Although the present statutes are less emphatic than former statutes, (2 Rev. St. 1876, p. 535, § 112,) they clearly enough provide that estates shall not be finally settled while claims against them, which have been properly filed, within the proper time, are pending and undisposed of. Rev. St. 1881, §§ 2393, 2401; Roberts v. Spencer, supra.
If it should be conceded that appellant's claim was not barred by reason of not having been filed 30 days prior to the final settlement, the question yet remains, has appellant made a case for the setting aside of the final settlement?If the claim was properly pending, there was illegality in the final settlement, such as would, if properly presented, justify and require the setting aside of the final settlement; but that illegality was not such as to render the order of the court, in approving the final settlement, absolutely void. So long as that settlement is not set aside in some proper manner, it is valid and conclusive. Heaton v. Knowlton, 65 Ind. 255;Reed v. Reed, 44 Ind. 429;Carver v. Lewis, 104 Ind. 438, 2 N. E. Rep. 705. Under former statutes, the only remedy for such illegality in a final settlement was by appeal from the common pleas to the circuit court. 2 Rev. St. 1876, p. 537, ...
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