McFadden v. Ross

• Decision Date: 16 October 1883
• Docket Number: 10,230
• Citation: 93 Ind. 134
• Parties: McFadden v. Ross et al
• Court: Indiana Supreme Court

93 Ind. 134

McFadden v. Ross et al

No. 10,230

Supreme Court of Indiana

October 16, 1883

Petition for a Rehearing Overruled Jan. 26, 1884.

From the Shelby Circuit Court.

The judgment is affirmed, with costs.

J. B McFadden and E. S. Stillwell, for appellant.

O. J Glessner, E. K. Adams, L. J. Hackney, T. B. Adams, L. T Michener and G. M. Wright, for appellees.

OPINION

Niblack, C. J.

This was a proceeding to remove an administrator. The petition stated that James B. McFadden was, on the 26th day of March, 1880, by the Shelby Circuit Court, appointed administrator of the estate of Joseph Nichols, deceased, and that he lawfully qualified as such administrator; that James R. Ross and John B. Stumph, two of the petitioners, had, in a certain action, recovered a judgment against the said McFadden, as administrator of said estate, for costs of suit amounting to the sum of $ 5.40; that Emil Fritz, Fedor Fritz, Otto Fritz and Richard Fritz, the remaining petitioners, had, also, in a certain other action, recovered a judgment against the said McFadden as administrator of the same estate, for the aggregate sum of $ 7.75; that more than a year had elapsed since his appointment, and the said McFadden had failed to make and return any inventory of the personal estate which had come into his hands, and had made no report of any kind concerning said personal estate. Wherefore the petitioners demanded that the said McFadden be removed, and the letters of administration issued to him be superseded. The facts alleged in the petition were verified by the oath of one John B. Sedgwick, but his name did not appear in the petition, and there was nothing in his affidavit showing that he had any interest in the estate.

McFadden moved to dismiss the petition because it did not appear that the person who verified it by his oath was in any way interested in the estate of his decedent; but, that motion being overruled, he answered in writing, under oath, that, at the time of his appointment as administrator, all the property which belonged to the estate, or in which the estate had any interest, so far as he had any knowledge, consisted of an interest which the decedent claimed to have in certain personal property, by virtue of a chattel mortgage executed to him by one George D. Nichols to secure the payment of the sum of $ 550, which property, when he, the said McFadden, became administrator, had been sold upon an execution against, and as the property of, the said George D. Nichols, and was in possession of the purchasers under such execution; that said property ever since his appointment as administrator had been, and still was, in controversy, he having been, during all that time, contesting the adverse claims of other persons to such property, and being still engaged in an effort to recover the possession of the same; that it was for that reason that he had failed to make and return an inventory of the personal estate of the decedent, or to render any other account of the condition of the estate; that he had no money in his hands belonging to the estate.

This answer was denominated in the proceedings an answer and report.

The cause was submitted to the court for trial upon the petition and answer, and, without the introduction of any evidence, the court made a finding for the petitioners and rendered a judgment of removal and of revocation of his letters of administration against McFadden.

It is contended that the court erred: First. In refusing to dismiss the petition. Secondly. In finding for the petitioners without the introduction of any evidence.

The act of June 17th, 1852, concerning the settlement of decedents' estates, was in force when the proceedings below were had.

So much of section 22 of that act as had any application to this proceeding was as follows:

"On the written application, verified by oath, of any person interested in the estate, or of any co-executor, co-administrator, or surety of such executor or administrator specifying the grounds of complaint, any executor, or administrator with the will annexed, or administrator may be removed, and his letters superseded by the court in which such letters issued for any of the following causes. * * * * Second. When he shall fail to make and return inventories and sale-bills, or to render account of his administration according to law." 2 R. S. 1876, p. 502.

It is argued in support of the objection that the petition ought to have been dismissed; that, under this statute, the person who swore to the petition, as well as the petitioner, must have had some interest in or connection with the estate, and that such interest in or connection with the estate ought to appear affirmatively either in the petition or in the affidavit verifying it.

We do not give the statute so strict a construction. We think that when the petition shows the necessary interest in, or responsibility for the administration of, the estate, it may be verified by the oath of any competent person.

The petition in this case was certainly none the less verified because the person swearing to it had no interest in the estate.

In support of the objection that the court erred in finding for the petitioner without the introduction of any evidence counsel cite ...