Fletcher Trust Co. v. Hines

• Decision Date: 19 November 1936
• Docket Number: 26507.
• Citation: 4 N.E.2d 562,211 Ind. 111
• Parties: FLETCHER TRUST CO. v. HINES.
• Court: Indiana Supreme Court

4 N.E.2d 562

211 Ind. 111

FLETCHER TRUST CO. v. HINES.

No. 26507.

Supreme Court of Indiana.

November 19, 1936

Final report of the Fletcher Trust Company, as guardian of Dorothy E. Marley, wherein Frank P. Hines filed exceptions. From an order sustaining the exceptions and directing the guardian to file amended report, the guardian appeals.

Reversed.

Appeal from Probate Court, Marion County; Smiley N Chambers, judge.

Means & Buenting and R. E. George, all of Indianapolis, for appellant.

James D. Ermston, Barnett W. Breedlove, and John E Buenting, all of Indianapolis, for appellee.

HUGHES, Chief Justice.

The appellant, as guardian of Dorothy E. Marley, filed its final report in said trust; and the appellee, Hines, being an interested party pursuant to the Veterans Guardianship Act, sections 8-501 to 8-519, Burns' 1933, sections 3479 to 3497, Baldwin's Ind.St.1934, filed exceptions thereto. A trial was had upon the exceptions and the same were sustained.

It appears that the appellant, as guardian, in 1929, filed its petition and secured an order of court to purchase certain government bonds and paid therefor $304.68, and these bonds were later sold without an order of court for $285.62; that in April, 1932, the appellant as guardian obtained an order to purchase a bond of the Indianapolis Water Company of the face value of $1,000, and said bond was purchased for $950; that appellant, as guardian, also pursuant to an order of court purchased a Free State of Bavaria bond of the face value of $1,000 for $960. In June, 1932, the appellant, as guardian, without an order of court sold the Indianapolis Water Company bond for $925, and the Free State of Bavaria bond for $182.50, which was the market value of said bonds at said time.

In sustaining the exceptions to the report the court found that the guardian should charge itself with the amount of the loss of said bonds with interest at 6 per cent., and that the total loss with interest amounted to $943.15. The court then made the following order: ‘ It is further ordered, adjudged, and decreed that said guardian, the Fletcher Trust Company, make and file its amended report on or before the 2nd day of January, 1935, and that it pay into the hands of the Clerk of this Court the sum of $943.15, in cash, for the use and benefit of the ward herein, Dorothy E. Marley.'

Appellee, Hines, filed a motion to dismiss this appeal for two reasons. The first reason is that appellant should have been made an appellee and the Fletcher Trust Company in its individual capacity should have been named as appellant in the assignment of errors.

We cannot agree with said contention. The order appealed from is an interlocutory order and not a final judgment. Leach v. Webb (1916) 62 Ind.App. 693, 113 N.E. 311; Angevine, Adm'r v. Ward, Guardian (1879) 66 Ind. 460; Pfeiffer v. Crane, Guardian (1883) 89 Ind. 485. The order is against the appellant in its fiduciary capacity and as such is properly named as appellant.

The second reason assigned by appellee, Hines, to dismiss the appeal is that the appeal bond was signed by the Fletcher Trust Company, in its individual capacity, and as the appeal is taken in its fiduciary capacity, the bond is not sufficient. We think the bond sufficiently complies with the statute. To perfect an appeal from an interlocutory order the statute provides that the appellant shall file an appeal bond as in cases of term appeals from final judgments. Section 2-3204, Burns' 1933, section 480, Baldwin's Ind.St.1934, provides: ‘ * * * upon an appeal bond being filed by the appellant, with such penalty and surety as the court shall approve * * *.’ Section 2-3219, Burns' 1933, section 491, Baldwin's Ind.St.1934, provides: ‘ Such appeal may be taken only within thirty (30) days from the date of the interlocutory order appealed from. To perfect such appeal, the appellant shall file an appeal bond as in cases of term appeals from final judgments, and shall file his transcript and assignment of errors, all within said period of thirty (30) days.’ It is thus seen that it is not required that the appellant sign the bond, but it is required to file such a bond that the court will approve. It is held in many cases that an appeal bond need not be signed by the judgment defendant, but if signed by the sureties it is sufficient. Barr, Trustee, v. Geary, Auditor (1924) 82 Ind.App. 5, 142 N.E. 622, and cases cited. Motion of appellee, Hines, to dismiss the appeal is overruled.

The appellee Dorothy E. Marley also filed a petition to dismiss the appeal herein based largely upon the allegation that the appeal is not prosecuted by the Fletcher Savings & Trust Company, a corporation. As to this motion it is sufficient to say that the record shows that there was a stipulation of facts filed by and between the parties hereto, and it shows that: ‘ The Fletcher Trust Company was appointed by the Probate Court of Marion County, Indiana, qualified on the 7th day of September, 1927, as guardian of Dorothy E. Marley, a minor.’ Motion of appellee Marley overruled.

The appellee insists that the order and judgment of the Marion probate court providing for the payment of $943.15 to the clerk of the court, for the use and benefit of the ward, Dorothy E. Marley, although appearing in the transcript, is not properly a part of the record because appellant did not request the same in his praecipe. The praecipe, among other things, ordered that the transcript include, ‘ * * * the entry and order of the court sustaining said exceptions and disapproving the guardian's final report and ordering the guardian to file an amended report * * *.’ We think this is sufficient to support the order as set out in the transcript.

It appears from the record that appellant's ward, Dorothy E. Marley, on September 20, 1933, after she arrived of age on September 18, 1933, signed a receipt acknowledging a final settlement and accounting with appellant as her guardian. It is contended by appellant that by reason of such action on the part of the ward it is released from further liability and that the ward is estopped from questioning the release. It is asserted by the appellant in its brief that the settlement is not questioned by the ward. The record shows, however, the contrary. The ward was in court as a witness and with an attorney objecting to the approval of the report, although she filed no formal exceptions. She testified that when she signed the receipt acknowledging final settlement she did not know of the loss sustained in the sale of the Bavarian bond and that it was not explained to her by the guardian.

The receipt signed by the ward was not conclusive evidence of a settlement between the appellant and its ward. Such a receipt may be explained, qualified, or even contradicted by parol evidence. Beedle et al. v. State, 62 Ind. 26.

The case was evidently tried on the theory that the sale of the bonds without an order of court was unlawful, that there was no emergency to sell the same, and that the guardian did not act with diligence, ordinary care, and prudence.

It is contended by the appellant that under the common law a guardian has power to sell personal property of the ward without an order of the court and this is conceded by the appellee. This seems to be well settled by the weight of authority.12 R.C.L. 1124, § 24; 28 C.J. 1134, § 222. The appellee insists that this rule has been changed in this state, and cites section 8-112, Burns' 1933, section 3434, Baldwin's Ind.St.1934, to sustain the proposition. We do not agree to this construction of the statute. The section referred to reads as follows: ‘ The proper court may, on application of a guardian, or of any other person (said guardian having notice thereof), order and decree any change to be made in the investment of the estate of any ward, that may, to such court, seem advantageous to such estate.’ In the sale of real estate belonging to a ward the law, sections 8-113, 8-123, Burns' 1933, sections 3440, 3447, Baldwin's Ind.St.1934, is very specific as to what the guardian shall do, but we have found no statute directing the manner of the sale of personal property and we have found no case of our courts directly in point on the question of the necessity of obtaining a court order. There are decisions of other courts, however, which hold that unless the power is restricted by statute, the guardian may sell without an order.

In the case of Maclay v. Equitable Life Assurance Society, 152 U.S. 499, 503, 14 S.Ct. 678, 679, 38 L.Ed. 528, the court was considering a statute of Mississippi which provided that ‘ The court may order a sale of personal property of a ward.’ In discussing the statute, the court said: ‘ But the statutes relied on, so far as they relate to guardians, would seem to be permissive, and not restrictive, and only to provide a mode by which the guardian may obtain in advance a judicial approval of such a sale or compromise, and thereby, in the absence of fraud, establish that it is for the interest of the ward, instead of leaving that fact open to dispute at a future day.’ And it was further said: ‘ A guardian, unless his powers in this respect are restricted by statute, is authorized, by virtue of his office, and without any order of court, to sell his ward's personal property, and reinvest the proceeds, and to collect or compromise and release debts due to the ward, subject to the liability to be called to account in...