Powell v. Jackson

Decision Date27 January 1916
Docket NumberNo. 8950.,8950.
Citation60 Ind.App. 597,111 N.E. 208
CourtIndiana Appellate Court


Appeal from Circuit Court, Rush County; Wallace Morgan, Special Judge.

Action by Cary Jackson, as special administrator, against Robert F. Powell, administrator of the estate of Amelia J. Powell, deceased, in his personal capacity. From a judgment for the estate, defendant appeals. Reversed, with instructions.John H. Kiplinger, of Rushville, for appellant. A. L. Gray, of Huntingburg, for appellee.


On December 13, 1911, appellant filed his final report as the administrator of the estate of Amelia J. Powell, deceased, and on the following day exceptions were filed to the same on the ground that the administrator had failed to charge himself with the proceeds of a certain promissory note calling for $175, executed by appellant to Amelia J. Powell. On December 19, 1911, the exceptions were submitted to the court and evidence heard, and, after hearing the argument of counsel, the court took the cause under advisement; and while the cause was so under advisement and before the court had passed upon the same, the court on its own motion appointed appellee as special administrator of the estate of Amelia J. Powell for the purpose of inquiring into the facts surrounding the execution of the note. On April 25, 1912, the court ordered the special administrator to bring an action against appellant upon the note. Upon issue being joined and a trial had, a verdict was returned against appellant and in favor of the estate of Amelia J. Powell in the sum of $125. An appeal has been prosecuted from a judgment on the verdict by appellant.

[1] The main question involved in this appeal is the authority of appellee to have prosecuted the action against appellant. This question is presented on exceptions reserved to the sustaining of a demurrer to three separate paragraphs of a plea in abatement, and by exceptions reserved to the sustaining of a demurrer to four separate paragraphs of answer on the merits of the cause.

It is disclosed by the various pleadings addressed to the complaint that while the court had under advisement the questions raised by the exceptions filed to appellant's final report as the administrator of the estate of Amelia J. Powell, it appointed a special administrator to bring an action against appellant upon a certain promissory note executed by appellant to Amelia J. Powell during her lifetime, and which was not accounted for in the final report, as aforesaid. The exceptions to the final report were never passed upon by the court, and that appellant was the duly acting and qualified administrator of the estate at the time appellee was appointed as such special administrator and continued as such throughout the litigation. Appellee, as such special administrator, was not sworn to perform or discharge any duty, nor did he execute a bond of any kind or character to faithfully perform his duties. He had no authority other than being named by the court as such special administrator, and that to his appointment appellant duly excepted at the time he was so named by the court.

Appellant very vigorously insists that the court had no authority to appoint a special administrator of the estate under the circumstances, for the reason that he was at the time the duly appointed, qualified, and acting administrator of the estate. To this contention, appellee's answer is that the circuit court has exclusive jurisdiction of all probate matters and is vested with large discretionary power, and when the procedure is not directed by statute, as in the matter here involved, the procedure will be supplied by invoking the equity jurisdiction of the court. In support of this position the following authorities are cited: Hildebrand v. Kinney, 172 Ind. 447, 87 N. E. 832, 19 Ann. Cas. 788;Pease v. Christman, 158 Ind. 642, 64 N. E. 90;Langsdale v. Woollen, 120 Ind. 78, 21 N. E. 541;Dehart v. Dehart, 15 Ind. 167.

Hildebrand v. Kinney, supra, was a case where a claim for funeral expenses was saved from the statute of limitations on the ground that it was not a debt against the deceased, but a charge imposed by law on equitable principles, and that the appointment of an administrator related back to the death of the deceased for the purpose of preserving any rights in favor of the estate, one of such rights being that of a Christian burial.

In Pease v. Christman, supra, where reimbursement was sought by the widow for money expended for a monument erected at the grave of her deceased husband, it was held that in the exercise of probate jurisdiction, the court had the right to determine equitable questions when properly presented and award all necessary relief whether legal or equitable.

Langsdale v. Woollen, supra, holds that the presumption was in favor of jurisdiction of the common pleas court, it being a court which exercised jurisdiction of all matters of probate at the time the administrator was appointed.

In Dehart v. Dehart, supra, where a widow filed a petition in the probate court showing a release by her of a dower estate to her son, who had agreed to convey to her a life estate in other lands, and praying for specific performance, it was held that the proceeding was one in chancery, and that, as a court of equity, the probate court had jurisdiction concurrent with the circuit court.

It can readily be seen that the authorities relied upon by appellee are not highly instructive as to the question presented by appellant.

It is provided by statute (section 2753, Burns' R. S. 1914) that a special administrator may be appointed for the purpose of preserving the property of the estate, until an executor or administrator could be duly appointed, and likewise, if an executor or administrator should die, resign, remove from the state, or his authority be revoked or superseded, an administrator de bonis non may be appointed; and also, if after final settlement it is found that assets of the estate have not been administered upon, an administrator de bonis non may be appointed (sections 2756, 2757, Burns' R. S. 1914). And if a person shall have died testate and notice of contest of the will shall have been given, it is lawful for the court to appoint a special administrator to take charge of the estate, so far as the same is consistent with the will. Section 2755, Burns' R. S. 1914.

There is no statute in this state authorizing the appointment of a special administrator while there is a regular administrator, duly appointed, qualified, and acting, so if the court had authority to appoint appellee as a special administrator under the circumstances in the case at bar it must have been independent of any statute.

“The appointment of an executor vests the whole personal estate in the person so appointed. He holds as trustee for the purpose of the will, but he holds the legal title in all the chattels of the testator. He is, for the purpose of administering them as much the legal proprietor of those chattels as was the testator himself while alive. This is incompatible with any power in the ordinary to transfer those chattels to any other person by the grant of administration in them. His grant can prove nothing; it conveys no right, and is a void act.”

The above language is quoted with approval in the case of Kane v. Paul, 14 Pet. (39 U. S.) 30, 10 L. Ed. 341, as taken from an early and lucid opinion of Chief Justice Marshall (Griffith v. Frazier, 8 Cranch, 9, 3 L. Ed. 471), and which later opinion in its final analysis holds that where there is one qualified executor, the court is without jurisdiction to appoint another.

By numerous authorities it has been held that after letters of administration have been granted, the court has no power to appoint an administrator pendente lite, unless such letters have first been revoked. 11 Am. & Eng. Ency. of Law (2d Ed.) pp. 803-826; Hooper v. Scarborough, 57 Ala. 514; Davis v. Shuler, 14 Fla. 445; Newman v. Schwerin, 61 Fed. 865, 10 C. C. A. 129; Grace v. Neel, 41 Ark. 165; Shroeder v. San Mateo Co., 70 Cal. 343.

In Landers' Ex'r v. Stone et al., Adm'rs, 45 Ind. 404, it was said:

“When there is a will,...

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    • November 18, 1941
    ...that is before us. Sullivan v. Nicoulin, 113 Iowa 76, 79, 84 N.W. 978; Larson v. Johnson, 72 Minn. 441, 75 N.W. 699; Powell v. Jackson, 60 Ind.App. 597, 111 N.E. 208. In C.J. Section 2806, pages 1180, 1181, that authority in commenting upon the right and powers of the special administrator ......

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