Gorham v. Gorham

• Decision Date: 05 November 1913
• Docket Number: 7,899
• Citation: 103 N.E. 16,54 Ind.App. 408
• Parties: GORHAM v. GORHAM ET AL
• Court: Indiana Appellate Court

103 N.E. 16

54 Ind.App. 408

GORHAM v. GORHAM ET AL

No. 7,899

Court of Appeals of Indiana

November 5, 1913

From Hendricks Circuit Court; James L. Clark, Judge.

Action by William Gorham and others against Thornton F. Gorham. From a judgment for plaintiffs, the defendant appeals.

Affirmed.

Enloe & Pattison and Brill & Harvey, for appellant.

George A. Huron, Thomas J. Cofer and Zimri E. Dougan, for appellees.

OPINION

LAIRY, C. J.

Appellant was appointed as administrator of the estate of his mother, Maria Davis, and while acting as such administrator procured the allowance of a claim for the sum of $ 5,750 in his favor and against the estate which he represented. This action was brought by appellees, three of the heirs of Maria Davis, to set aside the judgment allowing such claim. The appellees prevailed in the lower court and the judgment allowing the claim in appellant's favor was set aside and vacated. Upon proper request the court made a special finding of facts and pronounced its conclusions of law thereon. The errors assigned are, that the court erred in its conclusions of law upon the facts specially found, and that the court erred in overruling appellant's motion for a new trial.

The special finding of the court is as follows. "First: On the eighth day of January, 1906, Maria Davis died intestate in Hendricks County and State of Indiana leaving an estate consisting of realty and personalty and also leaving the following named heirs, to wit: William Gorham, a son, Priscilla Ann Kerr, a daughter, Thornton F. Gorham a son, Charles M. Gorham, and Elbert E. Gorham, grandchildren, sons of John A. Gorham, deceased, and Fred S. Gorham and Mary E. Ayres, grandchildren, being children of Daniel S. Gorham, deceased. On the thirtieth day of January, 1906, the defendant, Thornton F. Gorham the son and heir above mentioned of said Maria Davis, deceased, was duly appointed and qualified as administrator of the estate of said Maria Davis and ever since has been and now is acting as such administrator. Second: On the twenty-second day of September, 1906, said Thornton F. Gorham filed his claim against said estate in the sum of $ 8,187.50 and asked to have the same allowed and said claim was duly transferred to the court docket for trial and disposition by the court. On the 7th day of January, 1907, Fred S. Gorham and Mary E. Ayres, by Thad S. Adams their attorney filed a petition for the appointment of some one to defend said claim and the court appointed said Thad S. Adams to defend the same. Third: Said claim was placed on the trial calendar of said court for trial on the eleventh day of April, 1907. On the eighth day of April, 1907, said Thad S. Adams filed an answer in general denial to said claim as the representative of said estate and also a set-off in favor of said estate. On the eleventh day of April the parties to said action, to wit: said Thad S. Adams on behalf of said estate, and said Thornton F. Gorham in person and by attorney were present with their witnesses ready for the trial of said cause, and while waiting for said trial to be called said Thornton F. Gorham purchased from said Fred S. Gorham and Mary E. Ayres their interests in said estate. After the purchase of said interests said Adams notified the attorneys for said Thornton F. Gorham that he had no further interest in said cause and said attorneys in open court and in the presence of said Adams informed the court that their client had purchased the interests of said Fred S. Gorham and Mary E. Ayres in said estate and that said Adams made no further defense to said claim and upon the motion of said attorneys for said Thornton F. Gorham the judgment sought to be set aside in this action was rendered as by agreement, in favor of said Thornton F. Gorham for the amount of $ 5,750. Fourth: At the time of the rendition of said judgment the court had no knowledge of the existence of any of the heirs to said estate other than the said Thornton F. Gorham, Fred S. Gorham and Mary E. Ayres, and the court understood and believed that said parties were the only heirs to said estate and that said judgment had been agreed to by all parties interested in said estate. No information on that subject had been given to the court by either party other than that disclosed by the record. The court believing that all the interested parties had agreed to said judgment made no investigation as to the merits of said claim. Fifth: The plaintiffs in this action are heirs of said Maria Davis, being the same persons mentioned above in this finding and at the time of the filing of said claim and of the allowance of the same and at all times between said two dates they were nonresidents of the State of Indiana and were not in the State of Indiana during said period and had no knowledge of the filing, pendency, or allowance of the same. And as soon as they had knowledge of the allowance of said claim they began this action to vacate the same. The plaintiffs have a meritorious defense to said claim."

Appellant asserts that the trial court should have granted his motion for a new trial on the ground that the decision of the court is not sustained by sufficient evidence. His contention is that the facts stated in the fourth finding are wholly unsupported by any evidence to be found in the record. We do not find it necessary to determine the question thus presented, for the reason that we have reached the conclusion that the fourth finding may be entirely excluded from our consideration, and still the facts stated elsewhere in the finding are sufficient to sustain the conclusions of law.

Nowhere in the special finding does the court state as an ultimate fact that the allowance of the claim was procured by fraud, or that in obtaining the allowance of such claim appellant acted with a fraudulent intent or purpose. It is insisted by appellant that, in view of our statute on the subject, there can be no actionable fraud under the law of this State without a fraudulent intent; and that fraudulent intent is, in all cases, a question of fact for the court or jury trying the issues of fact. Taking these propositions as a basis he further asserts that no state of facts found by a court, which does not include the ultimate fact of "fraudulent intent" can be sufficient to justify a court in concluding as a matter of law that a fraud has been perpetrated. If appellant is correct in his contention, the finding in this case must be held insufficient to sustain the conclusions of law stated,...