Lyons v. Greene, 19690
| Decision Date | 19 November 1964 |
| Docket Number | No. 1,No. 19690,19690,1 |
| Citation | 136 Ind.App. 419,202 N.E.2d 172 |
| Parties | Evelyn H. LYONS, Evelyn H. Lyons, Adminlstratrix with the Will annexed of the Estate of Frank Lyons, Deceased, Author H. Ganger, Trustee of the Estate of Frank Lyons, Deceased, Appellants, v. Homer E. GREENE, Administrator of the Estate of Frank Lyons, Deceased, Appellee |
| Court | Indiana Appellate Court |
Seal & Seal, Washington, Hugh McNamee, Cleveland, Ohio, for appellants.
George M. Weaver, Hastings & Allen, by Philip D. Waller, Washington, Gray & Waddle, by Carl M. Gray, Petersburg, for appellee.
This is an appeal from the Daviess Circuit Court, Daviess County. The appellant exceptor, administratrix to the estate of decedent in Ohio and the sole and only heir at law filed exceptions and objections [136 INDAPP 421] below to the Indiana administrator-appellee's final report. The issues were formed by the administrator's final report and the exceptions filed thereto charging in substance that the Indiana administrator expended funds wrongfully and illegally in continuing the business of the deceased in Indiana and in paying funds to himself from the estate, as special administrator to the estate; as administrator to the estate; that proper notice was not given to continue the business of the decedent in Indiana; that continuation of said business was wasteful, detrimental and depletive; that fees paid to the administrator and to the attorneys to the estate were unwarranted, excessive and unlawful and that the items of expense objected to by the appellants were wasteful, detrimental and unlawful. The court found against the exceptors and overruled and denied the exceptions and objections filed to the final report, approved the final report and entered judgment in favor of the appellee.
The appellants filed a motion for new trial specifying 31 errors which when summarized presented the following questions for our consideration: first, that the decision of the court was not sustained by sufficient evidence; second, that the decision of the court is contrary to law; third, which comprises the balance of the specifications, that the court erred in admitting into evidence over the objection of the appellant certain evidence offered by the appellee. In the argument portion of the appellant's brief he follows substantially the order set out in his motion for new trial. We note, however, that he failed to argue several of the propositions and such failure thereby constitutes a waiver of such points. We shall follow the order of the appellant's brief in considering the errors argued.
[136 INDAPP 422] The only error assigned is the overruling of the appellant exceptor's motion for new trial. From the record it appears that the facts, concisely stated, are as follows: the decedent Frank Lyons, a resident of Starr County, Ohio, died on May 24, 1955, leaving Evelyn H. Lyons, his widow, as sole and only heir at law. After decedent's death, the appellee was asked by the appellant to continue running the Indiana property as he had done in the past. Decedent in his will, which was offered for probate in Ohio, and which will was the subject of a will contest action, gave power and authority to his trustees to continue his business operations as long as the trustees deemed it advisable. Evelyn H. Lyons, appellant was appointed special administratrix in the State of Ohio and continued as such until October 15, 1958. On August 23, 1955, at the request of the appellant, appellee filed for and was appointed, as administrator of decedent's estate in Indiana and also filed, at the request of appellant, a petition to continue the business of decedent in Indiana, which petition was granted. While serving in their separate capacities as administrators of the decedent's estate, the appellant requested appellee to pay the current operating expenses of property situated in Illinois and a part of decedent's estate. In January, 1956, appellant requested appellee to bring the necessary equipment and employees of the Indiana estate to Ohio to repair and salvage oil wells belonging to the Ohio estate. During the time appellee served as administrator to the Indiana estate he received a salary as such administrator and incorporated the services of an attorney who served as accountant and legal counsel of the Indiana estate.
While the appellant in her assignment of error summarizes and attempts to cover the specifications of her motion for a new trial, her argument is addressed to the [136 INDAPP 423] proposition that the court erred in overruling appellant's motion for a new trial. In her argument the appellant urges causes 1, 2, 3, 5, 6, 16, 17, 19, 23, 26 and 28. Her failure to support the other propositions by cogent argument and citation of authorities constitutes a waiver.
Cause number 1 that the decision of the court is not sustained by sufficient evidence, presents for this court the sole duty of determining whether or not the court's decision is supported by substantial competent evidence or any reasonable and permissible inferences to be drawn therefrom. Pelkey v. Strom (1963), Ind.App., 187 N.E.2d 753; Wolfa v. State (1926), 197 Ind. 204, 150 N.E. 98; Winter v. State (1925), 195 Ind. 664, 145 N.E. 567. Appellant argues that appellee administrator in Indiana was under a duty to pay the debts and taxes of the Indiana estate and dispose of the assets thereof, and that no right nor need existed for the continuing of the business, and as a result of its continuation the estate in Indiana suffered needless and enormous loss. The evidence shows that the actions of the appellee were at the request of the appellant. It has long been a rule of this Court and the Supreme Court of Indiana that where one, as a result of his own acts, omissions or agreements, or the acts of his agents or privies, encourages action or induces a course of conduct on the part of another he is estopped from making objection thereto. Pohlmeyer v. Second Nat. Bank of Richmond (1948), 118 Ind.App. 651, 81 N.E.2d 709; 13 I.L.E. Objections and Exceptions Sec. 302.
In the case of Gibson v. Gibson (1952), 122 Ind.App. 559, 568, 106 N.E.2d 102, 106, this Court said:
'Where a beneficiary under the terms of a will, being of full age and suffering no disability, with [136 INDAPP 424] knowledge of his rights, acquiesces in a course of conduct by the executrix which he knows is not authorized by the will and accepts the benefit thereof, he is estopped thereafter to question the propriety of such conduct.'
The appellant also argues that there is not sufficient evidence to sustain the court's decision in regard to paying appellee-administrator a weekly salary and administrator's fees, nor in expending funds...
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