Mefford v. Lamkin

• Decision Date: 21 February 1906
• Docket Number: No. 5,597.,5,597.
• Citation: 38 Ind.App. 33,76 N.E. 1024
• Parties: MEFFORD v. LAMKIN.
• Court: Indiana Appellate Court

38 Ind.App. 33

76 N.E. 1024

MEFFORD

v.LAMKIN.

No. 5,597.¹

Appellate Court of Indiana, Division No. 2.

Feb. 21, 1906.

Appeal from Circuit Court, Johnson CountY; E. A. McAlpin, Special Judge.

Action by Jesse B. Mefford against David Lamkin, administrator. From a judgment in favor of defendant, plaintiff appeals. Reversed.Wm. Feathergill and H. M. Swope, for appellant. Miller & Barnett, for appellee.

ROBY, C. J.

Action by appellant to set aside final settlement of an estate under the provisions of section 2558, Burns' Ann. St. 1901. It is averred in the complaint that appellant was the sole heir of Martha J. Handy, who departed life March 30, 1900, intestate; that appellee, Lamkin, was appointed administrator of her estate, qualifying and entering upon the discharge of said trust; that on November 8, 1901, he filed his verified final report, by which it was shown that he held for distribution the sum of $475.13, and that he himself and David Devar were the only heirs at law of said decedent; that he took and converted said sum to his own use and that of said Devar; that on December 11, 1901, the court heard and approved said final report; that appellant was not summoned or notified to appear at the hearing, and did not appear thereat, and had no knowledge thereof. The issue was formed by a general denial. Trial and finding for defendant. Motion for new trial overruled, and judgment on the finding.

When the administrator filed his final report showing the balance for distribution, and notice thereof was given in accordance with the statute, the court thereby acquired jurisdiction over the matter of the distribution of such surplus as an incident to final settlement. Jones v. Jones, 115 Ind. 504, 510, 18 N. E. 20;Sherwood v. Thomasson, 124 Ind. 541 24 N. E. 334; section 2561, Burns' Ann. St 1901. Upon the statements contained in said report, the administrator procured a judgment which is conclusive, so long as it remains in force. Its effect is the same whether the fund be retained by the administrator and paid out by him, or paid by him to the clerk, as was done in Jones v. Jones, supra, and in the case at bar. The term “final settlement” comprehends a payment of the balance so as to leave nothing to be done to complete the trust. Dufour, Executor. v. Duford et el., 28 Ind. 421. When the case last cited was decided, there was no statute authorizing the payment of moneys into court for distribution, as there is at present. Section 2557,...