Peters v. Hanlin, 27695.

• Decision Date: 15 May 1942
• Docket Number: No. 27695.,27695.
• Parties: PETERS v. HANLIN.
• Court: Indiana Supreme Court

220 Ind. 175

41 N.E.2d 604

PETERS

v.HANLIN.

No. 27695.

Supreme Court of Indiana.

May 15, 1942.

Proceeding in the matter of the estate of Mary S. Franks, deceased, wherein Ella Hanlin filed a claim which was opposed by Jesse L. Peters, administrator of the estate of Mary S. Franks, deceased. From a judgment allowing the claim, Jesse L. Peters, administrator, appeals. Transferred from the Appellate Court under Burns' Ann.St. § 4-218.

Affirmed.Appeal from Jay Circuit Court; Byron C. Jenkins, Judge.

Albert Abromson, Wheeler Ashcraft, Morton S. Hawkins, and Frank B. Jaqua, all of Portland, for appellant.

Chas. E. Schwartz, of Portland, and Wayne W. Hinkle, of Portland, for appellee.

RICHMAN, Judge.

Appellant says that he ‘bases his whole claim to have the judgment of the court below reversed upon the doctrine of res judicata’. The facts are not in dispute.

Mary S. Franks was mentally incompetent and under guardianship. She was cared for by appellee, her sister. In 1934 on appellee's petition asking allowance for past services ‘and that the guardian herein be ordered to pay the same and that the court fix the compensation to be paid to this petitioner for services to be hereinafter rendered,’ an order was entered that the guardian pay a fixed sum for past services and ‘that the guardian herein be and he is hereby authorized and directed to expend the sum of $6.00 per week for service rendered to the ward herein, not to include clothing and doctor bills, and until further order of the court.’

Appellee continued to care for her sister until her death on July 4, 1940. The guardian's funds from income were limited and no payments were made by the guardian to appellee after 1935. The last two years of her life Miss Franks was afflicted with cancer. During that time she fell and broke her hip. After the accident appellee told the guardian that because the care was greater than when her sister was ‘up and around and helping wait on herself’ appellee could not care for the ward for the same amount of money. But neither the guardian nor appellee applied to the court for any change in the order theretofore made.

After the death of Miss Franks appellant qualified as administrator of her estate. Appellee filed her claim for services rendered decedent. She recovered judgment for $3,454.85, of which $567.85 was for unpaid balance of the fixed sum for past services allowed in 1934 including interest thereon, $612 was for services from September 15, 1936, to October 4, 1938, at the rate of $6 per week and $2,275 was for services from October 4, 1938, to July 4, 1940, at the rate of $25 per week. The last amount was made a preferred claim as expenses of last sickness.

In this appeal therefrom appellant contends that the order made in 1934 authorizing the guardian to pay $6 per week for future care of his ward was a judgment binding upon appellee, who was a party thereto, by which she is estopped from claiming any larger amount per week. The trial court correctly held otherwise.

We regard it as an interlocutory order made in view of existing conditions. By its...