Ex parte Jenkins

• Decision Date: 23 November 1900
• Docket Number: 3,576
• Citation: 58 N.E. 560,25 Ind.App. 532
• Parties: EX PARTE JENKINS
• Court: Indiana Appellate Court

58 N.E. 560

25 Ind.App. 532

EX PARTE JENKINS

No. 3,576

Court of Appeals of Indiana

November 23, 1900

From the Ripley Circuit Court.

Reversed.

W. R Crawford, W. H. Najdowski and Merrill Moores, for appellants.

OPINION

ROBINSON, C. J.

Lulu C. Jenkins applied to the Ripley Circuit Court for letters of administration de bonis non on the estate of her deceased husband, William H. Jenkins. The court denied her application and upon that action of the court she predicates error. Upon the application of the petitioner this cause was advanced upon the docket of this court.

The proceeding below was ex parte, and in her verified petition she shows that her husband, William H. Jenkins, was an inhabitant of Ripley county, Indiana; that in September 1897, he was held by Henry Busching, the sheriff of Ripley county, as a prisoner in the county jail at Versailles, and that on or about the 15th day of September, 1897, a mob composed of divers persons entered the jail and killed Jenkins and other prisoners then in the custody of the sheriff; that Jenkins left an estate worth less than $ 500, which was, by a decree of court, vested in the petitioner as widow; that except the above there is not now and never has been any administration of his estate, nor has any executor or administrator ever been appointed; that decedent left no children; that there are no claims due from or to the estate except a claim for the killing of decedent, which she desires to prosecute.

While it is true the circuit court has a discretion in granting or refusing applications for letters of administration, yet where the proceeding is purely ex parte and a verified application shows the party entitled to letters, they should be granted. The right to letters does not depend upon the existence of tangible assets to administer. "There are instances" said the court in Toledo, etc., R. Co. v. Reeves, 8 Ind.App. 667, 35 N.E. 199, "in which such appointment may become proper and necessary in order to prosecute some claim of indeterminate value, or to make satisfaction of record of a claim which had been paid but not satisfied, and perhaps for other purposes."

It appears the court found generally the settlement of the estate; that there were no assets and no administration pending, as set out in the petition, and also found that Jenkins was killed September 15, 1897; that the petition was filed February 23, 1900, and that any right of action arising out of the killing expired by limitation of law September 16, 1899, and since that date has not constituted an asset of the estate. In an application for letters, where there are no tangible assets to administer, the application should show some claim or the right to enforce some claim in the estate's favor. The application does this, and being verified and ex parte its averments must be taken as true.

The application states, among other things, "that on or about the 15th day of September, 1897, the said William H Jenkins was in the full enjoyment of his health and life, but was held by Henry Busching, the sheriff of said Ripley county, Indiana, as...