New York Cent. R. Co. v. Clark

• Decision Date: 16 April 1964
• Docket Number: No. 19917,No. 2,19917,2
• Parties: The NEW YORK CENTRAL RAILROAD COMPANY, Appellant, v. Alice Prow CLARK, as Executrix of the Estate of Fred O. Clark, Deceased, Appellee
• Court: Indiana Appellate Court

Page 646

197 N.E.2d 646

136 Ind.App. 57

The NEW YORK CENTRAL RAILROAD COMPANY, Appellant, v. Alice Prow CLARK, as Executrix of the Estate of Fred O Clark, Deceased, Appellee.

No. 19917.

Appellate Court of Indiana, Division No. 2.

April 16, 1964.

Richard O. Olson, Chicago, Ill., Willard H. Chester, Jr., Elkhart, for appellant.

Thomas L. Murray, William J. Reinke, Daniel W. Rudy, South Bend, for appellee; Oare, Thornburg, McGill & Deahl, South Bend, of counsel.

KELLEY, Judge.

On March 5, 1959, the Kosciusko Circuit Court granted the appellee, Alice Prow Clark, letters testamentary, as executrix, in the estate of Fred O. Clark, who died testate on February 27, 1959. On March 1, 1960 appellee, as such executrix, filed her account and vouchers in final settlement of said estate and on April 25, 1960 she was finally released and discharged from her duties as such executrix. Said appellee was the widow and sole heir of said decedent and the sole devisee under his will.

On February 14, 1961 said Alice Prow Clark filed her verified petition to reopen said estate of said decedent and that she be reappointed as executrix thereof on the alleged ground that there was one necessary act remaining unperformed by her which she believed to be a proper cause for the reopening of said estate; that said necessary act and proper cause referred to is the pursuit of a wrongful death claim against the New York Central Railroad; that a train of the latter mentioned railroad struck the automobile of the decedent causing his death; that the wrongful death claim against said railroad has not been settled or determined and suit must be filed on or before February 27, 1961 or the cause of action will be lost because of the statute of limitations.

On the same day, February 14, 1961, the Kosciusko Circuit Court found that the averments of the petition to reopen the estate are true; that there are assets of said estate of substantial but undetermined value arising from the wrongful death claim referred to in the petition, which said claim is subject to the jurisdiction of the court as a probable asset and 'which has not and should be' administered upon; that the petitioner is an interested party; and that said claim, unless settled to the satisfaction of and with the approval of the court, should be filed in an appropriate state court or the United States District Court on or before February 27, 1961.

Thereupon, the court entered its order granting the prayer of said petitioner, reopening said estate without notice, and reappointing said Alice Prow Clark as Executrix thereof upon her giving bond in the amount of $100.00 and otherwise qualifying according to law. Said executrix duly qualified by taking oath and filing bond in the penalty of $100.00, which bond was approved by the court, and duly authenticated letters testamentary were issued to said Alice Prow Clark.

On May 26, 1961, the appellant filed in said court its verified petition to revoke said letters testamentary so issued to Alice Prow Clark upon the alleged ground that her petition to reopen the estate and the court's order entered thereon show on the face thereof that 'the sole and only purpose' for the reopening of said estate and the reissuance of letters testamentary to said Alice Prow Clark was to 'permit' her to bring action against appellant 'for the wrongful death' of decedent, which action she had in fact filed against appellant, and that, by reason of the 'facts set forth', said letters were 'improvidently and improperly issued' by the court and its act in so doing was contrary to law. It is further alleged in appellant's said petition that it, appellant, is an 'interested party'.

On May 24, 1962, appellant's said petition for revocation of the letters testamentary was submitted to the court for trial and evidence was heard thereon. The court found against appellant on its petition and adjudged that the same be 'overruled and denied'. Appellant duly filed its motion for a new trial on the specified grounds that the decision of the court is not sustained by sufficient evidence and that the same is contrary to law. Said new trial motion was overruled and this appeal followed in due course.

Of the assignments filed herein, the only assignment of error presenting any question is that the court erred in overruling appellant's motion for a new trial. The first specification of that motion charging insufficiency of evidence to sustain the decision of the court is unavailing to appellant. The second specification that the decision of the court is contrary to law provokes for initial consideration whether the appellant, under the circumstances here apparent and the provisions of the probate code and other statutes in force and effect on May 26, 1961, was entitled to institute and maintain this proceeding to reovke and set aside the letters testamentary issued to appellee.

If, a appellant asserts, the statute, § 7-1114, Burns' 1953 Replacement, did not authorize the court to reopen the estate of the decedent and reappoint said Alice Prow Clark as the personal representative for the sole and only purpose of instituting action against appellant on a claim for wrongful death of the decedent, then it must follow that appellant is, in fact, proposing that the court in said proceeding was without jurisdiction in the premises and, consequently, its acts in reopening the estate and issuing the letters testamentary to said named appellee were void. Therefore, since the appellant here challenges the authority of the court to appoint and issue letters to appellee and not the latter's authority to sue, we do not conceive that for the purpose of this proceeding, the appellant would be bound and limited by the provisions of § 7-405, Burns' 1953 Replacement, depriving appellant of the right to question the right of the personal representative to sue, as such, where a duly authenticated copy of the letters is submitted as evidence of such right. See Powell v. Jackson (1916), 60 Ind.App. 597, 605, 606, pt. 4, 111 N.E. 208; Toledo, St. Louis and Kansas City Railroad Company v. Reeves (1893), 8 Ind.App. 667, 669, 35 N.E. 199; The Jeffersonville Railroad Company v. Swayne's Administrator (1866), 26 Ind. 477, 481.

Basically, appellant's advanced position is that it is apparent from the whole record of the trial court, beginning with appellee's petition and the filing thereof, that the request for the reopening of the estate and the issuance of letters to appellee and the court's actions and order taken and entered pursuant to the petition therefor, had no relation whatsoever to or connection with the decedent's estate or any of the assets or property thereof, either previously administered or newly discovered, but pertained only to the sole purpose of clothing appellee with authority to institute an action against appellant for wrongful death of decedent. Thus, although appellant concludes and concedes that appellee could have pursued the action for wrongful death during the course of the general administration of said estate or appellee could have applied for special letters for such purpose after the closing of said estate, the appellant persists that she could not utilize the provisions of § 7-1114, Burns' 1953 Replacement, because it did not authorize the opening of the previously closed estate and the issuance of letters to appellee 'for the sole and only purpose of bringing an action for wrongful death against a third party.'

§ 7-1114, Burns' 1953 Replacement, being Acts 1953, ch. 112, § 1714, reads, in pertinent part, as follows:

'7-1114. Assets not administered.--(a) If, after an estate has been settled and the personal representative discharged, other property of the estate shall be discovered, or if it shall appear that any necessary act remains unperformed on the part of the personal representative, or for any other proper cause, the court, upon the petition of the discharged personal representative of any person interested in the estate and, without notice or upon such notice as it may direct, may order that said estate be reopened. It may reappoint the personal representative or appoint another personal representative to administer such property or perform such act as may be deemed necessary. Unless the court shall otherwise order, the provisions of this code as to an original administration shall apply to the proceedings had in the reopened administration so far as may be, but no claim which is already barred can be asserted in the reopened administration.'

Appellant urges that said section of our Probate Code, § 7-1114, Burns' 1953 Replacement, affords only three grounds for the reopening of the estate, viz.: '(a) Other property of the estate...