Harrison National Bank v. Culbertson
| Decision Date | 23 December 1896 |
| Docket Number | 17,942 |
| Citation | 45 N.E. 657,147 Ind. 611 |
| Parties | Harrison National Bank v. Culbertson et al |
| Court | Indiana Supreme Court |
Rehearing Denied May 14, 1897, Reported at: 147 Ind. 611 at 619.
From the Floyd Circuit Court.
Appeal dismissed.
F. T Hord, L. Perkins, S.D. Miller, E. G. Henry and Stebbins & Evans, for appellant.
H. M Dowling and Alex. Dowling, for appellees.
In the circuit court the appellant sued the appellees, Rebecca K. Culbertson and Samuel A. Culbertson, as the sole residuary devisees and legatees of William S. Culbertson, who died testate in the State of Indiana.
The complaint, to which that court sustained the demurrers of the appellees, sought to recover against them upon an alleged liability of said decedent and by virtue of sections 2597, et seq., Burns' R. S. 1894 (2442, et seq., R. S. 1881), which sections declare the liability of, and procedure against, the heirs, devisees and distributees of a decedent to the extent of the property received by them from such decedent's estate. The alleged liability of the decedent was upon an indebtedness of $ 3,452.00, reduced to a judgment, against the United States Savings Bank, a corporation subsisting under the laws of the State of Kansas, in which corporation said decedent was, at the time of his death, a stockholder representing stock of the par value of ten thousand dollars, which said indebtedness, under the constitution and laws of the state of Kansas, was a charge against the individual stockholders of said corporation.
The inquiry at the threshold of the case arises upon the motion of the appellees to dismiss the appeal herein. Neither the appeal bond nor the transcript was filed within forty days after the decision complained of was rendered, but the appeal was completed within one year from the rendition of said decision and without an order extending the time beyond forty days. The theory of the appellees is that the appeal should have been perfected under sections 2609, 2610, Burns' R. S. 1894 (2454, 2455, R. S. 1881), which provide that any person aggrieved by a "decision * * * growing out of any matter connected with a decedent's estate" may appeal by filing an appeal bond within ten days after the decision is made, unless otherwise ordered by the court appealed to, and by filing the transcript within thirty days after filing the bond.
The theory of the appellant is that the appeal was not required to be taken under sections 2609, 2610 (2454, 2455), supra; but that it was properly taken under the civil code, sections 644, 645, et seq., Burns' R. S. 1894, which permit an appeal from the circuit court within one year from the rendition of final judgment.
It would seem, therefore, that the question as to whether the appeal was perfected within the proper time must depend upon the meaning of the words "decision * * * growing out of any matter connected with a decedent's estate" as employed in section 2609 (2454), supra. While these words have many times been construed by this court their construction with reference to sections 2597 (2442), et seq., supra, has never before been sought. Whenever the claim or right presented for recovery has been against the estate of the decedent it has been uniformly held that the practice in appealing was that prescribed in said sections 2609, 2610 (2454, 2455), supra, or by provisions of like character in earlier statutes. Bennett, Admx., v. Bennett, 102 Ind. 86, 1 N.E. 199; Miller, Admr., v. Carmichael, 98 Ind. 236; Browning v. McCracken, 97 Ind. 279; Yearley, Admr., v. Sharp, Admr., 96 Ind. 469; Bell v. Mousset, 71 Ind. 347; Ten Brook v. Maxwell, 5 Ind.App. 353, 32 N.E. 106.
On the other hand it has been held, with like uniformity, that if the cause of action or demand is in favor of the estate, and the procedure for its enforcement is not prescribed by the decedents' estates act, ch. 6, sections 2365-2621, Burns' R. S. 1894, the practice as to appeals is that prescribed by the civil code, sections 644, et seq., supra. Mason v. Roll, 130 Ind. 260; Simmons v. Beazel, 125 Ind. 362, 25 N.E. 344; Walker, Admr., v. Steele, 121 Ind. 436, 22 N.E. 142; Heller v. Clark, 103 Ind. 591, 3 N.E. 844; Hillenberg v. Bennett, Admr., 88 Ind. 540; Willson v. Binford, 74 Ind. 424; Rusk v. Gray, 74 Ind. 231; Merritt v. Straw, 6 Ind.App. 360, 33 N.E. 657.
There is also a class of cases holding that where, pending an action, the death of a party is suggested and his administrator is substituted the appeal from a decision therein is governed by the decedents' estates act. Wright v. Manns, 111 Ind. 422, 12 N.E. 160; May v. Hoover, 112 Ind. 455, 14 N.E. 472; Holland v. Holland, 131 Ind. 196, 30 N.E. 1075; Louisville, etc., R. W. Co. v. Etzler, 4 Ind.App. 31, 34 N.E. 669.
This class of cases and that last before cited establish conclusively that it is not every "decision * * * growing out of a matter connected with a decedent's estate" which is appealable under the decedents' estates act. And it must be apparent that the literal import of the words quoted would be fatal to the appellant's standing in this court for it is clear that the decision here "grows out of a matter connected with a decedent's estate." It was upon an alleged liability of the decedent which was sought to be enforced against property held and left by him, and in no respect involved a personal liability of the appellees. If the only reason, sometimes asserted by the cases and that relied upon by the appellant, for limiting the time for appeals to forty days from the decision were that it should secure an early settlement of the estate involved, that reason would apply with equal force where the action is by the administrator to collect moneys due the estate as where it is for the recovery of moneys from the estate.
There is still another class of cases which hold that where the remedy is given and the procedure is prescribed by the decedents' estates act, the right of appeal given in that act must be pursued. Galentine v. Wood, 137 Ind. 532, 35 N.E. 901; Webb v. Simpson, 105 Ind. 327, 4 N.E. 900; Rinehart v. Vail, Admr., 103 Ind. 159, 2 N.E. 330; Seward v. Clark, 67 Ind. 289; Taylor v. Burk, Exr., 91 Ind. 252; Bake v. Smiley, Admr., 84 Ind. 212; Koons v. Mellett, 121 Ind. 585, 23 N.E. 95.
In Galentine v. Wood, supra, it was said: "It has often been decided by this court that the question as to whether an appeal is governed by the above provisions depends upon whether the proceeding from which the appeal is taken is a proceeding under the decedents' act, or a proceeding under the code.
"Where it is sought to appeal from any proceeding under the decedents' act, compliance with these provisions must be had, but where the proceeding is not under this act, the appeal is governed by the general provisions upon the subject of appeals," citing many of the cases cited by us.
In Mason v. Roll, supra, it was said of the provision limiting appeals to forty days: "This procedure is applicable to cases where the probate jurisdiction of the court is involved, but does not govern appeals in actions authorized by the code, not involving the exercise of the probate jurisdiction of the court."
In Koons v. Mellett, supra, it was said: "The rule to be deduced from the decisions upon the subject is that in all proceedings under the law providing for the settlement of a decedent's estate, where the exercise of the probate jurisdiction of the court is invoked, the appeal is governed by sections 2609, 2610, Burns' R. S. 1894 (2454, 2455, R. S. 1881)." Such are the expressions of many of the cases.
It would now seem necessary only to ascertain whether the proceeding in this case was under the decedents' estates act or not, to determine whether the appeal was in time. The appellant's action in form and effect was to enforce after the executor was discharged, a claim for which the estate would have been liable and the devisees not liable. It was enforceable against the property of the decedent during administration without regard to heirs or devisees. It is now enforceable, not as a claim or liability against the heirs or devisees, but as against the property in their hands, which property was subject to the liability before the death of the testator, after his death and during administration and after his death when administration is closed. The right to enforce the liability of the decedent against his property, after his estate is settled, is not a right common to all creditors, nor does it exist except by statute. The statute which gives this right, sections 2597-2608, Burns' R. S. 1894, is relied upon by the appellant, who is alleged to come within its...
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