Norwood v. Harness

• Decision Date: 30 October 1884
• Docket Number: 11,697
• Citation: 98 Ind. 134
• Parties: Norwood, Administrator, v. Harness et al
• Court: Indiana Supreme Court

98 Ind. 134

Norwood, Administrator, v. Harness et al

No. 11,697

Supreme Court of Indiana

October 30, 1884

From the Marion Circuit Court.

R. Hill and J. W. Nichol, for appellant.

L Ritter, E. F. Ritter and B. W. Ritter, for appellees.

OPINION

Bicknell C. C.

This is an appeal by an administrator from a judgment of said court requiring him to make a final settlement report in ten days and to pay into court for distribution the moneys with which he was chargeable.

A citation had been issued on petition of the appellees, requiring the administrator to make a final settlement, or show cause why he should not.

In his answer to that citation he stated his appointment as administrator, on the 3d day of August, 1882; that his decedent, when he died, had $ 4,188.80 on deposit in the Indiana Banking Company, where he had kept his money since 1865; that said administrator was informed by Ingram Fletcher, a banker of Indianapolis, that said Indiana Banking Company was safe and solvent, and he also learned that many leading business men of Indianapolis were making deposits in said Banking Company; that in view of these facts, and believing said company to be solvent and safe, he had said sum of $ 4,188.80 transferred to his credit as such administrator, and afterwards kept it and moneys of his decedent's estate on deposit with said company; that he never knew and never heard that said company was insolvent or embarrassed, until it failed on the 10th of August, 1883; that he is a farmer living about six miles from Indianapolis, and had no safe way of keeping the money at home, and so far as he could learn, said company was as safe as any other bank in Indianapolis; that he had on deposit with said company when it failed $ 4,103.31, of which he had not been able to collect a dollar; that he has a judgment against said company for the full amount of said deposit, and has made proof in order to obtain a dividend from the receiver of said company, but has not yet received anything; that at the time of said failure, he was prosecuting a suit in the superior court of Marion county, on a note executed by William Smock and Isaac Smock to said decedent, which was contested, and was also attempting to collect a note made by W. S. Thomas and John Thomas, and payable to him as administrator, and was trying to be ready for final settlement at the September term of said court, 1883; that no final settlement could be made before said September term, 1883, because at the close of the May term, 1883, of said court, a year had not elapsed since the date of his appointment as administrator; that on the 17th of September, 1883, he filed in this court a partial report as such administrator, showing a balance in his hands of $ 4,103.31, and that all of said balance was on deposit in said Indiana Banking Company when it failed; that said claim against William Smock and Isaac Smock was compromised about January 1st, 1884, and all the debts of said estate have been paid, and that said claim against William S. Thomas and John Thomas could be adjusted, and final settlement now made, but for the fact that no part of said deposit in the Indiana Banking Company can now be collected, wherefore he can not make a final report; that he is not personally liable to make good to said estate said loss by the failure of said company, but is bound to account for so much only of said money as can be collected from said banking company and its individual members. The answer concludes with a prayer that the final settlement of said estate be postponed, and that he be held accountable for so much only of said deposit as he may be able to collect.

To this answer the petitioners replied in two paragraphs:

1. A general denial.

2. That they are heirs at law of the decedent, and entitled to distribution; that there were no debts against said estate, and no claims in favor thereof; that long before the failure of said banking company, to wit, on May 11th, 1883, the Marion Circuit Court had settled the question as to the interests of the several heirs in the balance to be distributed, of which said administrator had notice; that said administrator kept the funds of the estate in the Indiana Banking Company, upon an agreement to receive interest therefor, although he kept his own private account with another bank; that before the failure of the Indiana Banking Company, more than a year had elapsed after the appointment of said administrator, who ought to have paid over and distributed all of said money before said failure, and by his negligence in failing so to do said money was lost; that said money was deposited by said administrator of his own motion, without order of court or consent of parties, although, at the time of said deposit, said company was, and long had been, insolvent and without capital, and that the facts as to its condition might and ought to have been known to said administrator, if he had made any effort to obtain them; that said loss was caused by said unlawful acts and omissions of said administrator. The reply concluded with a prayer that the administrator be ordered to pay over said money to the clerk of the court, and to file his report in final settlement.

A demurrer to the second paragraph of this reply, for want of facts sufficient, was overruled. A motion for a change of venue was made by the administrator and was overruled. The cause was submitted to the court for trial, and at the request of the administrator the court made a special finding of the facts and stated conclusions of law thereon. The following was the substance of the special finding:

1. That, on the 19th day of July, 1882, the said John Myers departed this life, in Marion county, Indiana, leaving certain heirs named in the finding, among whom are the petitioners.

2. That in a certain suit for partition the interests of all of said heirs in the balance to be distributed of the estate of said decedent was ascertained, of which said administrator had notice.

3. That, on August 3d, 1882, said administrator was appointed, and found on deposit in the Indiana Banking Company $ 4,188.48 belonging to said estate, said decedent having deposited his money in that bank since 1865; that said administrator proceeded in the settlement of said estate, and that at the present time there are no debts or claims filed against the same, or known by said administrator to exist, that are unpaid; that said administrator had in the bank of said company, on August 10th, 1883, $ 4,103.31 of the moneys of said estate, and is chargeable as administrator with $ 4,133.86; that all the debts due said estate are collected except a judgment for $ 97 against William S. Thomas and John Thomas, the stay upon which has expired, and it can be collected on call by the administrator; this finding states also the amounts to be distributed to said widow and heirs.

4. Among the assets was a note for $ 1,000, made by William Smock and Isaac Smock, and payable to the decedent; that said Smocks were insolvent, and said administrator procured an order of court to compromise said claim for $ 100, but afterwards, and without calling the attention of the court thereto, he brought a useless suit on said note in another court, and that he is entitled to no credit for expenses connected therewith.

5. That said banking company failed on the 10th of August, 1883, and had been insolvent for five years, and in all that time had the reputation of being an unsafe and weak bank in Indianapolis and the surrounding neighborhood, which reputation said administrator could have known by reasonable or ordinary diligence.

6. That the decedent, John Myers, was one of the sureties of Daniel Hanway, treasurer of Marion county, on his official bond, for the period beginning September 3d, 1877, and ending September 3d, 1879; that on the 20th day of December, 1880, the auditor of Marion county brought suit on said bond in the Marion Superior Court; that said John Myers was not made a party to said suit, and said administrator was not made a party thereto until May 7th, 1884, about the time the testimony in this case was closed, and did not know such a suit had been intended until May 8th, 1884, on which day he was served with process, and that no claim against said John Myers' estate, on account of said bond, has been filed in this court.

Upon these facts the conclusions of law were as follows: That said administrator is not entitled to any credit for losses sustained by such deposit in the Indiana Banking Company, and that he has shown no reason why he should not immediately settle said estate; that said superior court of Marion county has no jurisdiction to enforce any claim against said estate in said suit upon said official bond; that said estate and funds, and the administration thereof, are under the control of this court, and can be reached only by a claim duly filed in this court, and that the order of the judge of said superior court, and the proceedings had in consequence thereof, present no excuse why said administrator should not settle the same immediately.

To these conclusions of law the administrator excepted.

A motion for a new trial made by the administrator was overruled, and a judgment was rendered requiring the administrator to pay the costs and to file in said court, within ten days, his final settlement report, and to pay into court, for distribution, the moneys with which he stands charged.

The administrator assigns errors on his appeal as follows:

1. Overruling the demurrer to the second paragraph of the reply.

2. In refusing to grant a change of venue.

3. In the conclusions of law.

4. In overruling the motion for a new trial.

5. In rendering final judgment against said appellant.

The...