Moore v. Ferguson

• Decision Date: 25 October 1904
• Docket Number: 20,400
• Citation: 72 N.E. 126,163 Ind. 395
• Parties: Moore, Administrator, et al. v. Ferguson et al
• Court: Indiana Supreme Court

72 N.E. 126

163 Ind. 395

Moore, Administrator, et al. v. Ferguson et al

No. 20,400

Supreme Court of Indiana

October 25, 1904

From Boone Circuit Court; Samuel R. Artman, Judge.

Jonathan J. Moore, as administrator of the estate of Willis E. Moore deceased, filed his report in said estate, to which Robert J Ferguson and others filed exceptions. From an order denying certain items in favor of the administrator, he appeals in his individual and fiduciary capacity. Transferred from the Appellate Court under § 1337u Burns 1901.

Dismissed.

Ira M Sharp, for appellant.

Higgins & Holloman, Mahan & Kelsey, Clodfelter & Fine, C. D. Orear, B. F. Ratcliffe and Dutch & Wilhoite, for appelles.

OPINION

Jordan, C. J.

Jonathan J. Moore, in his individual capacity, and Jonathan J. Moore, administrator of the estate of Willis E. Moore, deceased, are joined as co-appellants in this appeal. Robert J. Ferguson and others, who were exceptors in the lower court, are the only persons who have been made appellees. Neither Jonathan J. Moore, nor any other person as administrator of the estate of the said Willis E. Moore, deceased, has been made a party appellee.

The facts disclosed by the record, among others, may be said to be as follows: On February 16, 1903, Jonathan J. Moore, as the administrator of the aforesaid estate, filed in the Boone Circuit Court what is denominated his "third current report." Notice of the filing thereof, and that the same would be heard by the court at a time fixed, was given to the heirs and creditors of the decedent. The appellees herein, heirs and creditors of the decedent, appeared in the lower court and filed objections and exceptions to said report. The matters and things therein called in question by the exceptions came on for hearing before the court at the April term, 1903. Upon hearing and considering the report and exceptions thereto the court found that the first and second current reports of the administrator should be approved and confirmed, except as to certain credits claimed therein by the administrator, and ordered and adjudged accordingly.

The third current report was disapproved by the court as to certain items with which the administrator had charged himself, and the court ordered and adjudged that the charges therein against him be increased to the amount of $ 100. A credit of $ 712.52 in the report, which he claimed should be allowed to him personally as a partial payment for his services rendered in the administration of the estate, was wholly disapproved and rejected by the court. Other credits mentioned in the report to which he claimed to be entitled were also disallowed and rejected. The court further found that the entire estate of the decedent, both real and personal, had been converted into cash, and that the total amount with which the administrator was chargeable was $ 11,518.16, and that no claims for allowance were pending against the estate. The court also found that a claim to the amount of $ 1,013.78 had been filed and allowed against the estate, upon which claim or obligation Moore, in his individual capacity, was the principal, and the estate of the decedent was his surety. The court's finding further discloses that said Jonathan J. Moore is wholly insolvent, and is the owner of no property whatever, and that the estate will be compelled to pay said claim of $ 1,013.78 out of the assets thereof. The court, among other things, ordered and adjudged as follows: "It is further ordered by the court that the administrator be and is hereby allowed the sum of $ 600 in full payment for all his services as administrator in this estate, including services for making final report and settlement. And it is further ordered and adjudged by the court that said administrator shall not pay to himself personally said sum of $ 600, but that an equal amount of the indebtedness and claim filed against the estate upon which the administrator personally is principal be set off against said allowance of $ 600 to said administrator, and that said administrator is hereby ordered to pay said sum of $ 600 to the clerk of this court to apply on said claim." It was further ordered and adjudged that the administrator pay all costs arising out of the administration of the estate within ten days from date, and that, within said period, he file his final report, and pay to the clerk of the court the entire balance of funds in his hands belonging to the estate, including said sum of $ 600 allowed him for his services, to be applied to the payment of the claims filed and allowed against the estate of the decedent, and that the surplus, if any, be distributed after the payment of all claims to the heirs of said Willis E. Moore. Jonathan J. Moore, as the administrator, unsuccessfully moved the court for a new trial, and also to modify its judgment. He also filed in his individual capacity a motion whereby he sought to obtain a modification of the judgment. This motion the court denied.

Errors have been separately assigned by each of the appellants herein. As administrator, Moore, under a separate assignment complains of the ruling of the court in denying the motion for a new trial, and in...