Hamilton v. Huntington

• Decision Date: 28 December 1944
• Docket Number: 28032.
• Citation: 58 N.E.2d 349,223 Ind. 143
• Parties: HAMILTON v. HUNTINGTON et al.
• Court: Indiana Supreme Court

58 N.E.2d 349

223 Ind. 143

HAMILTON v. HUNTINGTON et al.

No. 28032.

Supreme Court of Indiana

December 28, 1944

Rehearing Denied Feb. 14, 1945.

See 59 N.E.2d 122.

Appeal from Morgan Circuit Court; Omar O'Harrow, Judge.

Rocap & Rocap, of Indianapolis, Vernon &amp Vernon, of Martinsville, and Kivett, Chambers & Kivett of Indianapolis, for appellant.

Paul G. Davis and Grabill & Baker, all of Indianapolis, and Homer Elliott, of Martinsville, for appellees.

SHAKE Judge.

Maude H. Darrach died March 6, 1941, and on March 11 her alleged last will was admitted to probate in Marion County. On the same day the appellant, named as executor in said will, qualified as such and letters testamentary were issued to him by the Probate Court of Marion County. An action to contest the will was commenced by the appellees on October 7, 1941, and on November 24, 1943, while that suit was pending, they filed a petition for the appointment of a special administrator of the personal estate of said decedent, based upon the sole ground that this was necessary 'to fully protect the interests of all concerned,' under § 6-308, Burns' 1933. There was a change of venue as to the issue thus tendered to the Morgan Circuit Court where a demurrer to the petition was overruled and an answer was filed. A trial resulted in a judgment appointing the appellee Union Trust Company as special administrator and ordering the executor to turn over to it the personal assets of the estate of the decedent. From this judgment and order the executor has prosecuted this appeal.

The appellees' petition was predicated upon § 1, ch. 2, Acts 1857, the same being § 6-308, Burns' 1933 and § 3044, Baldwin's 1934, which reads: '[That] when any person shall have died testate, and notice of contest of the will of said testator shall have been given, as required by law, it shall be lawful for the proper court to appoint a special administrator, who shall proceed to collect the debts due said testator, by suit or otherwise, and to sell the personal property of said testator, and also to pay the claims against his estate, in the same manner and under the same regulations as are now required of administrators of intestates, so far as the same may be done consistent with the terms of such will.' (Our italics.)

It is the contention of the appellees that the jurisdiction of the trial court to appoint a special administrator is to be found in the words 'and notice of contest of the will * * * shall have been given, as required by law,' which, they say, have reference to the 'citation' in an action to contest a will after probate, provided for in § 7-505, Burns' 1933, § 3397, Baldwin's 1934; and that the words 'it shall be lawful,' etc., vested in the trial court a broad discretion to appoint a special administrator under the circumstances of this case. The appellant contends, on the other hand, that the clause first quoted refers to the 'objection' which an interested party is authorized, by § 7-503, Burns' 1933, § 3393, Baldwin's 1934, to file before a will is admitted to probate, and that the only discretion that is lodged in the trial court in such an instance is that of determining whether there is any necessity for a personal representative before the validity of the purported will is determined. The controversy revolves around the meaning of the words, 'notice,' 'citation,' and 'objection,' as used in the statutes referred to above.

Counsel for the parties and amicus curiae have made an exhaustive study of the legislative history of said statutes, but the sum total of this inquiry does not throw much light on the problem before us. This, therefore, appears to be a case for the application of the rule that in ascertaining the legislative intent in the enactment of an ambiguous statute the courts will look to its general purpose and the effect and consequences of the various meanings that might be ascribed to it. State ex rel. Fox v. Board of County Commissioners of Carroll County, 1931, 203 Ind. 23, 178 N.E. 563. Chancellor Kent amplified this rule in the following appropriate language: 'In the exposition of a statute the intention of the lawmaker will prevail over the literal sense of the terms; and its reason and intention will prevail over the strict letter. When words are not explicit, the intention is to be collected from the context; from the occasion and necessity of the law; from the mischief felt and the remedy in view; and the intention should be taken or presumed according to what is consistent with reason and good discretion.' Quoted from 2 Horack's Sutherland Statutory Construction (3d Ed.) § 4704.

By way of approach to the subject before us, it will be helpful to keep in mind certain fundamental concepts pertaining to wills and the settlement of decedents' estates. The first is that a testator has the right to select the executor of his will and that it is the mandatory duty of the court to appoint the person so named, if he is qualified. § 6-201, Burns' 1933, § 3025, Baldwin's 1934. In re Stahl's Estate, 1943, 113 Ind.App. 29, 44 N.E.2d 529. Farmers' Loan & Trust Co. v. Security Trust Co., 1923, 79 Ind.App. 537, 138 N.E. 97. It is likewise true that, all other things being equal, a sole administration of a decedent's estate is to be preferred to a joint one, and that when corepresentatives of a decedent's estate are appointed, they are regarded in law as one person. 34 C.J.S., Executors and Administrators, §§ 1041 and 1042. The sound reason that condemns divided responsibility in the administration of a decedent's estate was noted in Landers, Ex'r, v. Stone et al., Adm'rs, 1873, 45 Ind. 404, where it was said: 'If there was an executor or an administrator with the will annexed, and an administrator, in the same estate, the utmost confusion would result. Against whom, in such a case, would a creditor file his claim? In what manner would distribution be made, and how could advancements be adjusted? Aside from the inconvenience, confusion, and embarrassment resulting from two persons acting in antagonism, the expense would be so enormous as to consume an ordinary estate.'

We are impressed with the thought that much of what was observed by Judge Buskirk in the above case would be equally pertinent if there should be an executor and a special administrator acting at the same time in the same estate.

The only public policy suggested by the appellees as supporting their construction of the statute is their assertion that the law contemplates that the executor...