Drake v. Drake
| Decision Date | 06 December 1917 |
| Docket Number | No. 9423.,9423. |
| Citation | 66 Ind.App. 85,117 N.E. 871 |
| Parties | DRAKE v. DRAKE et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Sullivan County; Wm. H. Birdwell, Judge.
Proceedings on the final report of Mary E. Drake, administratrix of Henry Johnson, deceased. From a judgment denying on exceptions of Henry E. Drake and others, her application for an allowance of compensation, the administratrix appeals. Affirmed.A. G. McNabb and J. W. Lindley, both of Sullivan, for appellant Charles D. Hunt and Gilbert W. Gambill, both of Sullivan, for appellees.
Appellant was duly appointed administratrix of the estate of Henry Johnson, deceased. After administering the personal estate of said decedent, she filed her final report, in which she asked an allowance of $400 for her services and expenses as such administratrix. Appellees, other than such administratrix, who are heirs of said decedent, filed their exceptions to such final report, asking that appellant's claim for services be not allowed. Such exceptions were in two paragraphs, the first of which was based on an alleged agreement on the part of appellant to serve as such administratrix without compensation, and the second of which was based on a like alleged agreement, except she was to be reimbursed for her actual expenses as such administratrix. The issues thus formed were submitted to the court for trial, resulting in a judgment denying appellant compensation for her services as such administratrix, but allowing her $100 for expenses incurred in the settlement of such estate. Appellant filed her motion for a new trial on the following grounds: (1) The decision of the court is not sustained by sufficient evidence; (2) the decision of the court is contrary to law; (3) the decision of the court is contrary to the evidence; (4) the judge of the Sullivan circuit court, before whom said cause was tried, was disqualified to hear, try, and determine said cause.
[1][2] The motion for a new trial set forth the alleged facts on which appellant based her claim, that the trial judge was disqualified to hear and determine such cause, and was verified by her affidavit. This motion was overruled, and appellant duly reserved an exception. This action of the court constitutes the sole error on which appellant relies for a reversal. The third reason assigned for a new trial is not recognized by the statute. Bass v. Citizen Trust Co. (1903) 32 Ind. App. 583, 70 N. E. 400;Johnson v. Allispaugh (1914) 58 Ind. App. 83, 107 N. E. 686;Fox v. Close (1913) 113 N. E. 1007. The fourth reason assigned for a new trial cannot be considered, as the alleged facts on which it is based are not made a part of the record by bill of exceptions. True, the motion for a new trial was verified by the oath of appellant, but such verified motion cannot take the place, or serve the purpose, of a bill of exceptions. Hood v. Tyner (1891) 3 Ind. App. 51, 28 N. E. 1033;Manion v. Lake Erie, etc., R. Co. (1907) 40 Ind. App. 569, 80 N. E. 166;South Chicago City R. Co. v. Xerler (1903) 31 Ind. App. 488, 65 N. E. 599;Michael v. State ex rel. (1914) 57 Ind. App. 520, 108 N. E. 173;Dorsey v. State (1912) 179 Ind. 531, 100 N. E. 369;Taylor v. Schradsky (1912) 178 Ind. 217, 97 N. E. 790;Shank v. State (1915) 183 Ind. 298, 108 N. E. 521;Perry v. State (1916) 115 N. E. 59.
The first and second reasons assigned for a new trial call in question the action of the court in denying appellant compensation for her services as such administratrix. It appears from the record that Henry Johnson departed this life intestate in Sullivan county, Ind., on the 7th day of November, 1913, leaving a personal estate to be administered upon amounting to about $22,000. On the 22d day of such month, appellant, who was the youngest daughter of said decedent, was appointed administratrix of his estate, and on said day duly qualified and entered upon a discharge of the duties of said trust. She duly administered upon said estate and filed her final report therein, in which she sought an allowance of $400 from the assets of said estate, in compensation for her services and expenses as such administratrix. On the trial it was admitted that such services, outside of any contract or agreement, which may have been made, prior to her appointment, between her and the heirs of said decedent, were reasonably worth said sum, and that her expenses in administering upon said estate were $100. The evidence with reference to any such contract or agreement tends to establish the following facts: The heirs of said decedent first made an attempt to settle the estate without administration, but could not agree. Appellant then said to certain of the heirs that she would go to Sullivan the next day, and take out letters of administration on the estate, among whom were her two older sisters, Melinda Jane Milligan and Belle Johnson. They said to her that their husbands, Wake Milligan and Jeff Johnson, would go to Sullivan the next day also. There were objections on the part of some of the heirs to appellant taking out letters of administration on said estate. Prior to the time she had qualified as such administratrix, the said Wake Milligan and Jeff Johnson, representing their said wives, met appellant in the office of her attorney, where Wake Milligan told her there was some dissatisfaction among the heirs in her acting as administratrix, and asked her if she would be willing to have one of the heirs or even a stranger go in with her to settle up the estate, to which she answered, in substance, that such an arrangement would make extra expense, and that if he would help her and she had no trouble, she would charge only her actual expenses. The said Milligan and Johnson made no response, but soon left the office and informed certain of the other heirs of decedent, who were in Sullivan that day to look after their interests in said estate, that appellant had agreed to act as administratrix thereof for her actual expenses. After consultation they decided to let her proceed without further objections, because of the promise she had made. Appellant qualified as such administratrix in the afternoon of said day, and during the forenoon thereof, she told Henry A. Johnson, one of the appellees, in substance, that she would administer on said estate free of charge, except her expenses, if the heirs would help her as they had done. That subsequent to the issuing of such letters of administration to her, she told at least three persons that she would charge just what money she was out. To one she said, in substance, that some of the heirs objected to her acting as administratrix, but she told them she would only charge what she was actually out, and they seemed to think that would be all right, and to another she said she had agreed to charge nothing, but she had changed her mind.
[3] Appellant contends that the alleged agreement not to charge for her services as such administratrix is not binding on the trial court, and for that reason was not evidence, and that it does not tend to establish the fact that appellant was not entitled to pay for her services. We concede that such an agreement, as alleged in the exceptions filed by appellees, is not binding on the court in which such trust is pending, but we do not understand that appellees are so contending. The question at issue is not whether the judgment of the court can be fixed by private contract, but whether appellant could bind herself by such an agreement. We hold that appellant might so bind herself, and hence evidence of such a contract tends to sustain the decision of the court. As was said in the case of Polk v. Johnson (1904) 35...
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