Lucas v. Donaldson
| Decision Date | 29 January 1889 |
| Docket Number | 13,463 |
| Citation | 19 N.E. 758,117 Ind. 139 |
| Parties | Lucas, Administrator, v. Donaldson, Administrator |
| Court | Indiana Supreme Court |
From the Montgomery Circuit Court.
Judgment reversed, with costs.
L. J Coppage, for appellant.
G. W Paul, J. E. Humphries, W. E. Humphries and W. M. Reeves, for appellee.
Lucas as administrator de bonis non of the estate of Louisa C. O'Rear, filed a claim against the estate of Joseph O'Rear, deceased, of which Donaldson was the administrator. The complaint, or statement of the claim, was in two paragraphs. In the first it was alleged that Mrs. O'Rear died in the county of Montgomery--the date of her death not being stated--and that Joseph O'Rear was afterwards duly appointed administrator of her estate, and that while so acting he collected six hundred dollars due the estate from one Patterson, the latter having executed his promissory note payable to the decedent for that sum in her lifetime. It is averred that Joseph O'Rear died in the year 1884, after having collected the money due on the note above mentioned, and that the plaintiff, Lucas, was afterwards appointed administrator de bonis non of the estate of Louisa C. O'Rear, and that the defendant, Donaldson, was the duly appointed and qualified administrator of the estate of Joseph O'Rear. It is alleged that the above mentioned "sum of six hundred dollars is due the plaintiff, with the interest thereon."
The averment in the second paragraph is, that the defendant is indebted to the plaintiff in the sum of eight hundred dollars for money collected by Joseph O'Rear while administrator of the estate of Louisa C. O'Rear, deceased. To this paragraph there is a bill of particulars attached which shows that the money claimed to be due is that collected on the Patterson note.
The question is made here that the complaint does not state facts sufficient to constitute a cause of action. It is very certain that neither paragraph of the complaint states a cause of action against the estate of Joseph O'Rear. The facts stated show nothing more than that the intestate had, prior to his death, collected six hundred dollars, and interest, due on a note from one Patterson, to the estate of which he was the administrator. It may be inferred that he died with the proceeds of the note in his hands, but there is no suggestion that he was in default in respect to any duty required of him by the statute, or that he had in any way violated his trust as administrator. Surely the estate of a deceased administrator can not be subjected to the costs of a suit, unless the administrator had neglected some duty, or unless he had been guilty of some default, for which a suit might have been maintained against him in case he had lived. Besides, it does not appear that the amount collected from Patterson constituted the entire sum collected by the deceased administrator, or that the state of his account was such that a judgment for the sum so collected would effect a final settlement of his account with the estate. Upon what principle can this isolated item be singled out, and a suit, in the nature of a common law action, maintained for it against the administrator of Joseph O'Rear?
The duty of taking possession of trust funds which remain in the hands of a decedent at the date of his death, and of settling his accounts in relation to the trust, is devolved primarily upon his executor or administrator. The latter is not bound to proceed in the execution of the trust, but must preserve the fund for those entitled, and pay it over to them or to some one duly authorized to receive it, under the order of the proper court. Silvers v. Canary, 114 Ind. 129, 16 N.E. 166.
It is to be presumed, until the contrary appears, that the administrator of Joseph O'Rear obtained possession of all funds remaining on hand belonging to the estate of Louisa C. O'Rear, and that he will pay them over to the persons entitled; or, if there be doubt or dispute, that he will report them with an account of the doings of his intestate to the proper court in due time.
If an unreasonable delay occurs, an application to the court having control of the administrator will be effectual to produce the fund and the account, or a statement of the reasons why they are not forthcoming, when, if the facts justify it, a suit upon the bond of his predecessor will accomplish the whole duty, and exhaust the power of the administrator de bonis non in that behalf.
The remedy against the representatives of a deceased administrator is wholly statutory, the rule of the common law being that a devastavit committed by an executor or administrator was a personal tort, which died with the person. Young v. Kimball, 8 Blackf. 167.
Accordingly it was formerly held that an administrator de bonis non could only recover such of the goods,...
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