In re Barger's Estate

• Decision Date: 04 November 1943
• Docket Number: 17099.
• Citation: 51 N.E.2d 104,114 Ind.App. 129
• Parties: In re BARGER'S ESTATE. BARGER v. BARGER.
• Court: Indiana Appellate Court

51 N.E.2d 104

114 Ind.App. 129

In re BARGER'S ESTATE. BARGER v. BARGER.

No. 17099.

Appellate Court of Indiana, in Banc.

November 4, 1943

Moran & Abromson, of Portland, Gordon, Edris & Thompson, of Bluffton, and Nathan Nelson, of Decatur, for appellant.

Barrett Barrett & McNagny, of Fort Wayne, and Ferd L. Litterer of Decatur, for appellee.

CRUMPACKER Presiding Judge.

Samuel Barger, a resident of Adams County, died on the 27th day of April 1940, and in due course a document purporting to be his last will and testament was admitted to probate by the circuit court of said county. As provided by the terms of said will the appellant Jacob Barger was duly appointed executor thereof and qualified as such on May 17, 1940, by filing bond and oath as required by law. On June 8, 1940, John Barger and Edward Arnold, heirs at law of the said Samuel Barger, brought suit to contest the validity of said purported will and to revoke the probate thereof, which suit they successfully maintained, and from the judgment therein the appellant appealed to this court where it was transferred to the Supreme Court under Sec. 4-218, Burns' 1933, Sec. 1359n, Baldwin's 1934, and the judgment affirmed by that court on May 21, 1943. Barger v. Barger, Ind.Sup., 1943, 48 N.E.2d 813. After the rendition of said judgment and before affirmation thereof one Edward Barger, another heir at law of said decedent, filed a petition in the Adams Circuit Court seeking the appointment of a special administrator of his estate pending the final determination of the appeal in the suit contesting said will. From an order granting such petition and appointing such special administrator this appeal is taken, and we are called upon to determine the questions presented by the following assignment of errors: "(1) The court erred in appointing a special administrator in the estate of Samuel Barger, deceased; (2) The court erred in sustaining appellee's amended petition for the appointment of a special administrator in the estate of Samuel Barger, deceased; (3) The court erred in refusing to strike out appellee's amended petition for the appointment of a special administrator on the motion of appellant, Jacob Barger, executor of the last Will and Testament of Samuel Barger, deceased; (4) The court erred in overruling the demurrer of appellant, Jacob Barger, Executor of the last Will and Testament of Samuel Barger, deceased, to appellee's amended petition for the appointment of a special administrator; (5) The court erred in overruling appellants' motion for a new trial."

We have found no precedent or authority for assignments Nos. 1 and 2. They present no recognized ground for reversal and constitute nothing more than a statement of the appellant's position on the fundamental question we are to decide. We see no merit in assignment No. 3 because the motion involved merely assails the sufficiency of the facts set out in the petition to warrant the relief asked. It is elementary that a motion to strike cannot perform the office of a demurrer in determining the sufficiency of a pleading, and no error can be predicated upon the action of a trial court in overruling such a motion. Hart v. Scott, 1907, 168 Ind. 530, 81 N.E. 481; Port v. Williams, 1855, 6 Ind. 219; Burk, Executor, v. Taylor, 1885, 103 Ind. 399, 3 N.E. 129; Guthrie v. Howland, 1905, 164 Ind. 214, 73 N.E. 259; Woodhams v. Jennings, 1905, 164 Ind. 555, 73 N.E. 1088.

The demurrer relied upon in assignment No. 4 is for want of facts sufficient to constitute a good cause of action. The motion for a new trial, the overruling of which constitutes assignment No. 5, complains of the insufficiency of the evidence to sustain the allegations of the petition and the legality of the judgment entered thereon. As the evidence tends to prove the allegations of the petition and in no respect departs therefrom, it is apparent that appellant's assignments Nos. 4 and 5 present identical questions.

It must be borne in mind that this proceeding was instituted for the appointment of a special administrator of a decedent's estate and not for the removal of the acting and qualified executor thereof. There are some allegations in the petition to the effect that the appellant is not properly performing his duties as such executor and there is a dispute in the evidence as to whether this is true or not. Such allegations, however, are foreign to the purpose of the petition and may be treated as surplusage and the evidence in support thereof regarded as irrelevant and immaterial to the issue. The petition under consideration is based wholly and squarely on Sec. 6-308, Burns' 1933, Sec. 3044, Baldwin's 1934, which reads as follows: "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. (Acts 1857, ch. 2, § 1, p. 4)."

The appellant contends that this statute has reference only to such contests as are instituted through objections to the probate of the will in controversy, thereby preventing the appointment of the executor named therein and leaving the testator's estate without a curator to preserve and protect its assets. That where a will has...