Ormes' Estate v. Brown

• Decision Date: 22 February 1899
• Docket Number: 2,743
• Citation: 52 N.E. 1005,22 Ind.App. 569
• Parties: ORMES' ESTATE v. BROWN, ADMINISTRATOR
• Court: Indiana Appellate Court

52 N.E. 1005

22 Ind.App. 569

ORMES' ESTATE v. BROWN, ADMINISTRATOR

No. 2,743

Court of Appeals of Indiana

February 22, 1899

Rehearing denied June 28, 1899.

From the Rush Circuit Court.

Reversed.

W. A Cullen, W. H. Martin and J. D. Megee, for appellant.

D Morris, S. L. Innis, G. W. Morgan and H. E. Barrett, for appellee.

WILEY, J. Henley, J., did not participate in the decision of this case.

OPINION

WILEY, J.

This action presents a controversy between two estates. Henry Ormes, deceased, was administrator of the estate of Thomas W. Hilligoss, deceased, and it is here sought to hold the estate of the former liable for an alleged misapplication and conversion of money and property belonging to the estate of the latter, in a common law action. The case was first put at issue upon the verified claim filed by appellee, by answer and reply. Upon the issues thus joined the case was submitted to the court for trial, and after the evidence was partly heard, a continuance was granted on appellee's motion, to the end that he might amend his complaint. Subsequently an amended complaint was filed, upon which the case was finally tried.

The amended complaint avers that John W. Hilligoss died intestate, and at the time of his death was the owner of real estate of the value of $ 4,500, and of personal property of the value of $ 209; that Henry Ormes was appointed administrator of his estate, and took upon himself the settlement thereof; that there came into his hands as such administrator $ 6,018.52 in cash, and personal property appraised at $ 209; that on November 29, 1893, said Ormes died intestate, without having fully and finally settled said estate; that he used all the assets of said estate except $ 253.08, without having paid all the costs and expenses of administration, and without having paid the claim of the widow of $ 500, her statutory allowance; that he used the assets of said estate in the payment of unlawful claims, converted said assets to his own use, and leaving due the widow, as her part of $ 500, the sum of $ 275, and a number of other due and unpaid claims. A list of the unpaid claims is then set out, and in all they aggregate, with interest, $ 463.80. It is then averred that appellee was duly appointed and qualified as administrator de bonis non of said estate, and entered upon the duties of said trust.

A demurrer was addressed to the amended complaint, which was overruled and appellant excepted. The issues were joined by an answer in three paragraphs, and a reply in two, but as no questions are presented by the record for decision arising upon the answer or reply, we need not refer to them further. The case was tried by the court, resulting in a general finding and judgment for appellee. Appellant's motion for a new trial was overruled, and he has assigned errors: (1) That the court erred in overruling his demurrer to the amended complaint, and (2) that the court erred in overruling his motion for a new trial. We will determine the questions presented in their order.

Appellant enters upon a discussion of the alleged insufficiency of the complaint, by referring to the common law rule that an administrator de bonis non succeeds only to the rights of his predecessor in the particular assets of the trust which remain unadministered at the time of his appointment, and that he could not recover from the estate of his predecessor for a wrongful application or conversion of the trust assets. The settlement of decedents' estates is regulated in this State by statute, and the duty and authority of administrators and executors are likewise prescribed. There are provisions for the appointment of an administrator de bonis non, and when thus appointed he "shall have the same rights and be subject to the same liabilities as the administrator first appointed." Section 2240 Horner 1897. The term de bonis non has a strict and limited meaning, and being strictly interpreted is "of the goods not yet administered." The common law rule is forcibly and succinctly stated in Vol. 8 Ency. of Pl. & Pr. p. 654, as follows: "At common law an administrator de bonis non succeeds to rights which belonged to the first executor or administrator, and is entitled to recover such assets of the estate as remain unadministered in specie, and such of the debts due the decedent as remain unpaid. But his authority does not extend to assets already administered, and cannot sue his predecessor, or, in case of his decease, his personal representative, for any part of the estate sold, converted or wasted by him." If, therefore, an administrator de bonis non has any right of action against his predecessor, or personally, or against his estate, in case of his decease, it must be by virtue of some right conferred upon him by statute, for it is plain that he has no such right under the common law. The only statute now in force as to the right of an administrator to sue his successor is section 2458 Horner 1897, which is as follows: "Any executor or administrator may be sued, on his bond, by any creditor, heir, legatee, or surviving or succeeding executor or administrator, co-executor or co-administrator of the same estate, for any of the following causes, viz.: Fifth. Embezzling, concealing or converting to his own use such property. Tenth. Any other violation of the duties of his trust." There are ten causes specified, which would authorize such action, but the two set out are the only ones that have any application to the facts here pleaded. It has been held that any misapplication of the trust fund is a conversion of it, and a suable breach of the official bond. State v. Sanders, 62 Ind. 562; Fleece v. Jones, 71 Ind. 340.

The complaint in the case before us unquestionably shows a misappropriation of the funds of the estate, and hence shows a conversion for which the first administrator would be liable upon his bond. As to whether his estate is liable, in an action by his successor, depends upon the construction put upon the statute cited, and similar statutes concerning the same subject-matter. The case of Anthony, Adm., v McCall, Adm., 3 Blackf. 86, was very similar to the one now before us. There the action was by appellant, as administrator de bonis non of the estate of one Abraham Carey, against McCall, administrator of Samuel Carey, and it was to recover from the latter's estate for a conversion of funds of the estate of appellant's decedent while Samuel Carey was such administrator. The court said: "By one of the first rules of pleading, an action can only be brought by the person who has the legal right of action. The sufficiency of the declaration must, therefore, depend upon the legal rights and power of an administrator de bonis non. He is entitled to all the goods and personal estate, etc., which remain in specie, and were not administered by the first executor or administrator, as well as to all debts due and owing to the testator or intestate. The original representative, executor, or administrator, is liable for a devastavit, but such liability is not enforced, at the suit of the administrator de bonis non. The administrations are distinct. Each has peculiar duties and responsibilities. In the event of a devastavit committed by either, the heirs, creditors, and others, whose legal rights are affected, by appropriate action, may obtain redress. The administrator de bonis non, having no legal right of action, cannot be the medium of such redress, unless authorized by statute." In the case of Coleman, Adm., v. McMurdo, 5 Rand. 51, it was held that the administrator de bonis non could not bring an action, as the one to which we have just referred, either in law or equity. The case of Young v. Kimball, 8 Blackf. 167, was an action in chancery by an administrator de bonis non, against the estate of his trust predecessor to recover for an alleged devastavit of the trust funds. In that case the court said: "The main question arising in the case is whether the bill will lie? It charges a devastavit, a conversion of the goods of the intestate to the use of the administrator. If the commission of a devastavit by an administrator amounts to an administration of the goods of the intestate to the extent of the devastavit, then neither a bill in chancery nor suit at law can be maintained against the representative of such administrator by the administrator de bonis non for the recovery of the value of the goods, etc., included in the devastavit, for the plain reason that the power and duty of an administrator de bonis non, by the terms of his commission, extend only to the unadministered goods, etc., of the deceased. That a devas...