Miller v. Bode
| Citation | 139 N.E. 456,80 Ind.App. 338 |
| Decision Date | 29 May 1923 |
| Docket Number | 11,476 |
| Parties | MILLER v. BODE, ADMINISTRATOR |
| Court | Court of Appeals of Indiana |
Rehearing denied October 3, 1923.
From Lake Superior Court; Charles E. Greenwald, Judge.
Action by William Miller against Herman P. Bode, administrator of the estate of Esther Vermilya. From a judgment for defendant the plaintiff appeals.
The controversy involved in this appeal arises out of the settlement of the estate of one Esther Vermilya, deceased.
On June 9, 1919, William Steinberg, a resident of Lake county Indiana, was accidentally killed at Berwin, Illinois, by a train of the Chicago, Burlington and Quincy Railroad Company. At the time of his death Steinberg was a widower, his wife having died in the year 1918. He left surviving him his infant daughter, Esther, who was his only child. Herman P. Bode was duly appointed administrator of his estate by a court of competent jurisdiction in the county of which he was a resident at the time of his death. The administrator made a settlement with the railway company for wrongfully causing the death of William Steinberg, by which he realized a net balance, after the payment of attorney's fees, of $ 4,800. The administrator also realized from the sale of decedent's personal property $ 2,258.64, and from the proceeds of a life insurance policy $ 200.
At the time of her father's death Esther Steinberg was staying temporarily at the home of her Aunt Minnie, her father's sister, in Hadley, Michigan. She remained with her Aunt Minnie a short time after her father's death and then went to the home of her Aunt Lena Vermilya, another sister of her father, in Flint, Genesee county, Michigan. This change in Esther's place of abode was due to the fact that her Aunt Minnie was a widow and had several children of her own, while her Aunt Lena was childless. On June 22, 1920, Orville J. Vermilya and his wife Lena Vermilya, by proceedings in the probate court of Genesee county, Mich., adopted Esther; and in the same proceeding the court ordered that her name be changed to Esther Vermilya.
On July 13, 1920, Esther Vermilya died, at Flint, Genesee county, Michigan; and in the following November, the superior court of Lake county, Indiana, appointed Herman P. Bode administrator of her estate. In due time the administrator of her estate filed his report in final settlement thereof. In that report he charged himself with the total net proceeds of the estate of William Steinberg, deceased, which remained in his hands on final settlement thereof. The report shows that after paying the costs of administration and inheritance taxes, the administrator had on hand for distribution $ 6,908.64. The report then recites that the decedent, Esther Vermilya, left surviving her, no father, no mother, no brother and no sister, but did leave surviving, her paternal grandparents, Frederick Steinberg and Henrietta Steinberg, and also her maternal grandfather, William Miller; and that the administrator is informed and believes that since the entire assets of the estate were derived from the paternal side, and none thereof from the maternal side, the total amount for distribution should be paid to the paternal grandparents and none to the maternal grandfather.
The usual notice of the filing of the final report was given, and at the time fixed for the hearing the paternal grandparents and the maternal grandfather appeared. William Miller, the maternal grandfather, filed a document which he denominated "Exceptions and Objections" and a supplemental document of the same designation. In these documents he avers that as the maternal grandfather he is an heir at law of the decedent and entitled to share in the distribution of her estate. His objections to the administrator's account, as set forth in the same documents, are as follows: (1) By virtue of the law of Illinois, the administrator should have charged himself with $ 5,000 on account of the money received from the railway company; (2) that the administrator had failed to account for various sums received on account of personal property; and (3) that, since the deceased was an inhabitant of the State of Michigan at the time of her death, the distribution should be according to the laws of Michigan. He asked that he be adjudged an heir at law of the decedent and entitled to one-half the proceeds of the estate, and for all other proper relief.
At the close of the trial the court overruled the "exceptions," approved the final report, and ordered the administrator "to pay to the paternal grandparents of decedent, Frederick and Henrietta Steinberg, in equal parts, all moneys now in his hands as such administrator, and that William Miller, the sole maternal grandparent of the decedent, receive no part or portion of said fund." Miller's motion for a new trial was overruled, and he reserved exceptions to each adverse ruling. The errors assigned challenge the action of the court: (1) In approving the final report; (2) in overruling the objections; and (3) in overruling the motion for a new trial.
It should be stated also that one William R. Roberts, who had been appointed administrator of the estate of Esther Vermilya, deceased, by the probate court of Genesee county, Michigan, filed his petition asking that all the assets in the hands of Herman P. Bode as administrator of the same decedent, be turned over to him. It does not appear that any ruling has ever been made on that petition.
Reversed.
Seabright & Seabright, McCormick, Kirkland, Patterson & Fleming, Fesler, Elam & Young, for appellant.
Gavit, Hall, Smith & Gavit, for appellee.
The procedure adopted in this matter is so irregular and confusing that it should not go unnoticed.
The proceeding is not a civil action, and therefore the provisions of the Code are not applicable. Brownlee, Admr., v. Hare (1878), 64 Ind. 311; Conger v. Babcock, Admr. (1882), 87 Ind. 497; Dohle v. Stults, Admr. (1884), 92 Ind. 540.
The proper method of challenging the correctness of an administrator's account, as exhibited in his report, is to file objections (sometimes inaptly called exceptions) thereto, specifically pointing out the alleged errors. § 2913 Burns 1914, Acts 1883 p. 160; Christie, Exrs., v. Wade (1882), 87 Ind. 294; Conger v. Babcock, supra; Swift, Admr., v. Harley (1898), 20 Ind.App. 614, 49 N.E. 1069. Where the correctness of an administrator's account is contested the court has inherent power to make a special finding of facts and to state conclusions of law thereon; and that is an excellent way of reserving questions to be presented on appeal. Swift v. Harley, supra; Taylor v. McGrew (1902), 29 Ind.App. 324, 64 N.E. 651.
Proof of heirship has no legitimate connection with the accuracy...
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