Hull v. Burress

• Decision Date: 29 June 1950
• Docket Number: No. 17988,17988
• Citation: 120 Ind.App. 507,93 N.E.2d 213
• Parties: HULL et al. v. BURRESS.
• Court: Indiana Appellate Court

Page 213

93 N.E.2d 213

120 Ind.App. 507

HULL et al. v. BURRESS.

No. 17988.

Appellate Court of Indiana, in Banc.

June 29, 1950.

John O. Moomaw, Bloomfield, Orval Hunter, Bloomfield, for appellant.

Paul M. Messick, Terre Haute, N. George Nasser, Terre Haute, of counsel, for appellee.

BOWEN, Judge.

This is an appeal from a judgment on a claim against a decedent's estate. The cause was tried by the court, and the court made a finding and entered judgment for appellee in the sum of $2,133.

Errors assigned by the appellant, Helen Hull, as executrix of the estate of King L. Hull, deceased, and the estate of King L. Hull, deceased, and not waived are: That the trial court had no jurisdiction to pronounce the judgment appealed from; that the court erred in pronouncing judgment against the estate of King L. Hull, deceased, instead of Helen Hull, as executrix of the estate of King L. Hull, deceased; that the court erred in overruling the motion of appellant for a new trial, the grounds of which were that the decision of the court is not sustained by sufficient evidence and is contrary to law, the assessment of the amount of recovery is erroneous being too large, and that the defendant has since the trial of the cause and judgment therein discovered new, competent, and material evidence which could not, with reasonable diligence, have been produced at the time of the trial of said cause.

Additional error assigned is the action of the trial court in permitting the introduction into evidence of plaintiff's Exhibit 'D' over appellant's objection.

In support of the contention that the trial court had no jurisdiction to pronounce the judgment appealed from, appellant asserts that the claim does not contain a statement of facts showing legal liability in the part of the estate, or showing, prima facie, that the estate is lawfully indebted to claimant, and that the claim was not sufficient as a matter of substance to confer jurisdiction of the subject-matter upon the court.

Our statute with reference to claims against decedent's estates, Sec. 6-1001, Burns' 1933 requires that the holder of a claim shall file a succinct and definite statement thereof in the office of the Clerk in which the estate is pending. No formal complaint is required and such statute is entitled to a liberal construction. A claim is sufficient if it shows legal liability on the part of the estate, and indicates to its representative what he is called upon to meet with reasonable certainty. McCulloch v. Smith, 1901, 24 Ind.App. 536, 57 N.E. 143, 79 Am.St.Rep. 281; Logan v. Hite, Adm'r, 1938, 214 Ind. 233, 13 N.E.2d 702; Culver v. Yundt, 1887, 112 Ind. 401, 14 N.E. 91; Lockwood v. Robbins, 1890, 125 Ind. 398, 25 N.E. 455.

The pleading in the instant case entitled 'more specific verified claim' definitely specifies exact hours and dates for which amounts are claimed from decedent's estate. Such claim contains sufficient substance to bar another action for the same demand. Ginn v. Collins, 1873, 43 Ind. 271; Davis et al. v. Huston et al., 1882, 84 Ind. 272.

While it is true such claim does not contain a specific description of the nature of the services, evidence was introduced without objection showing nursing services were performed by claimant. Where evidence has been introduced to an essential fact not pleaded and such fact has been determined under the evidence, the judgment will not be reversed on account of such defect in the pleading. Prudential Ins. Co. of America v. Ritchey, 1918, 188 Ind. 157, 119 N.E. 369, 484.

Appellant's assignment of error that the trial court had no jurisdiction to pronounce the judgment appealed from is, therefore, without merit.

The appellant contends that the trial court erred in rendering the judgment appealed from against the estate of King L. Hull, deceased, instead of Helen L. Hull, as executrix of the estate of King L. Hull, deceased, citing Sec. 6-1016, Burns' 1933 which provides that the court shall render judgment against the executor or administrator. However, it has been held that a judgment against an administrator, as such, is not substantially, but merely, nominally, a judgment against him. It is a judgment against the estate which he administers, payable out of the estate, and is never to be paid unless the estate is able to pay it. Egbert v. State, 1853, 4 Ind. 399; Henry's Probate Law, 5th Ed., Vol. 1, Sec. 322, p. 419.

The action of the trial court in rendering judgment for plaintiff against the estate of King L. Hull, deceased, instead of a judgment in the name of the executrix, while technically erroneous is not ground for reversal, since the executrix was merely the nominal party and the representative of the estate, and the judgment was in substance and actuality against the estate, and the payment of such judgment by law must come from such estate.

After the filing of the claim against the estate as required by law, the executrix became a party by operation of law, and the appellees failing to name the executrix in her statement of claim did not invalidate the same. Bowman et al. v. Citizens Nat. Bank of Martinsville et al., 1900, 25 Ind.App. 38, 56 N.E. 39.

Appellant's assigned grounds in the motion for a new trial include the specifications that the decision of the court is not sustained by sufficient evidence and that it is contrary to law.

An examination of the record discloses the following evidence on behalf of the claimant: Dr. H. B. Turner testified he was the attending physician for the decedent during his last illness; that the nature of his illness required nursing services; that he saw decedent two or three times a day; that the private nurse on duty with the decedent was the claimant. Dr. Turner also testified that he had a conversation with the decedent with regard to the services of claimant, and that in that conversation the decedent told him that he had not paid the claimant and that he did not want Dr. Turner to pay her but that he wanted her to file a claim against his estate; 'that she could file a claim and that he wanted her to make it big enough that she would be wholly paid for all she had done;' that also Dr. Van Sandt was present at the time of this conversation. Dr. Van Sandt in his testimony testified he recalled a conversation with the decedent when Dr. Turner was present and statements were made concerning payment to claimant for nursing services. Dr. Van Sandt testified that he was not the attending physician of decedent, but that he saw him every day. That the decedent had a private nurse from December 7, 1946 until March 16, 1947; that such nurse was the claimant and that he saw her every day he was there.

Dr. M. J. Mount testified that he visited the decedent at various times while he was a patient in the hospital, and that the claimant was rendering professional nursing services to the decedent. Dr. John W. Woner testified that the claimant was the decedent's professional private nurse during his last sickness.

In addition to the testimony of the foregoing physicians, there was the testimony of others as to the performance of nursing services during the time set forth in the claim, and that the decedent wanted the claimant to file a claim against his estate for the services performed by her. We feel that the evidence recited herein was substantial and that from this evidence, the claim of decedent was established by substantial evidence of probative value and from reasonable inferences to be drawn from such evidence.

The appellant, however, insists there is a failure of proof in that appellee has failed to produce direct evidence of the performance of the services for the exact days and hours set forth in the claim, and that such burden was upon appellee.

Under our statute the claimant's lips were sealed, and for many of the hours only claimant or decedent would have direct knowledge of the performance of such services. But the testimony of witnesses that the claimant was the decedent's private nurse, and that th...