Rountree v. Pursell
| Decision Date | 08 February 1895 |
| Docket Number | 1,052 |
| Citation | 39 N.E. 747,11 Ind.App. 522 |
| Parties | ROUNTREE, ADMINISTRATRIX, v. PURSELL ET AL |
| Court | Indiana Appellate Court |
From the Montgomery Circuit Court.
Judgment affirmed.
B Crane, A. B. Anderson, Thomas & Whittington, for appellant.
W. T Brush and E. C. Snyder, for appellees.
The appellant, Mary A. Rountree, as administratrix of the estate of Mary D. Gilkey, deceased, filed her petition in the Montgomery Circuit Court and asked the court to order a distribution of certain moneys in her hands to the persons lawfully entitled thereto. A day for the hearing of such petition was fixed and notice thereof duly issued. The appellee Essie Pursell appeared and filed an answer claiming to be entitled to a distributive share of said estate. The court tried the issues and made a special finding of the facts and stated conclusions of law thereon.
The facts as found are, substantially, as follows:
Daniel Gilkey died testate in Montgomery county, Indiana, the 20th day of April, 1884. By the terms of his will he made certain specific bequests, and the residue of his property he devised and bequeathed to his daughter, Mary D. Gilkey, his only child. William P. Herron became the executor of the will, and as such executor he settled the estate in accordance with the terms of said will and was discharged from the trust June 25 1885.
Mary D. Gilkey, the residuary devisee and legatee, was a minor, nine years of age, when Daniel Gilkey died. Samuel W. Austin was appointed and became her guardian May 8, 1884. As such guardian Austin received of Herron, executor, personal property of the ostensible value of $ 25,229.86. Of this sum $ 10,009 consisted of notes, accounts, judgments, and cash; $ 7,000 of seventy shares of the capital stock of the First National Bank of Crawfordsville, Indiana, at its face value, and $ 10,500 at its appraised value; $ 4,700 of four per cent. United States Government bonds; $ 20 of four shares of the capital stock of the Montgomery County Union Agricultural Society, of the face value of $ 25 per share.
Some of the notes, accounts, and judgments were worthless, and the probable value of the whole personal estate received by the guardian was about $ 21,000 or $ 22,000.
Daniel Gilkey, at his death, owned real estate in Montgomery county, Indiana, of the probable value of $ 15,000, which, by the terms of his will, went to Mary D. Gilkey, and she died the owner thereof by virtue of the devise.
The guardian of Mary D. Gilkey, prior to her death, collected all the notes, accounts, claims, demands and choses in action, which he had received from Herron, executor, except a few worthless and uncollectible claims which were of no value.
During the existence of the guardianship, the guardian, as such, collected and received large sums of money, as interest, the exact amount of which is unknown. He collected as dividends on bank stock large sums of money. He collected large sums of money as interest on United States bonds, and he sold the United States bonds for $ 5,922, of which sum $ 1,220 was premium, the amount received in excess of the face value of the bonds. He collected and received, as cash rents from the real estate, about $ 6,000. He sold wheat, corn, hay and other personal property, raised on or taken from the real estate, and realized from such sales a large sum of money. He collected and received in cash from other sources about $ 19,600.
The money received by Austin, as guardian, which was not received by him from Herron, executor, was money derived from the income of the estate of Mary D. Gilkey, his ward, and the personal estate received from the executor.
Samuel W. Austin kept an account of his receipts and expenditures, as guardian, in the First National Bank, of Crawfordsville, Indiana, in the name of his ward, Mary D. Gilkey. In this account Mary D. Gilkey was credited with all sums received by her guardian, and was charged with all sums expended on her account, and with loans made by him out of her funds.
The money so collected and received by Austin, as guardian, was commingled, and no separate account or memorandum was kept by which one part could be identified from the other. Much of it was re-invested in new loans to different parties, and new notes and obligations taken therefor, in the name of said guardian, from other persons than those who were originally indebted to the estate. Out of the moneys so collected and received, the expenses of the care, education and support of the ward and of the guardianship; the taxes of the real and personal estate of the ward, and various costs and expenses were paid.
Mary D. Gilkey died in Montgomery county, Indiana, August 2, 1892, intestate, and under the age of twenty-one years. September 17, 1892, Austin made his final settlement as guardian and paid into court as the balance of funds in his hands the sum of $ 7,744.14 in cash, and turned over notes to the court to the amount of $ 6,011, and also turned over to the court the seventy shares of the capital stock of the First National Bank, of Crawfordsville, Indiana, of the face value of $ 7,000, and the four shares of stock of the Montgomery County Union Agricultural Society of the value of $ 20.
The personal property and assets, turned over by the said Samuel W. Austin, as guardian, in his final settlement, were less in amount and value than came into his hands from said William P. Herron, executor, and the expenditures of the guardian, allowed by the court, exceeded the income, rents, dividends, and interest received by him from the real and personal estate of Mary D. Gilkey. The costs and expenses of the trust were greater than the income therefrom.
Mary D. Gilkey died without issue and left, surviving her, neither father nor mother, brothers or sisters, or their descendants, but left surviving her a sister of Daniel Gilkey, deceased, and a number of descendants of his deceased brothers and sisters.
Julia Gilkey, the mother of said Mary D. Gilkey, died in November, 1876. The appellee, Essie Pursell, is the daughter of a deceased sister of Julia Gilkey, and is the owner, in her own right and by assignment, of the interest of all the heirs on the mother's side in the estate of Mary D. Gilkey.
Mary A. Rountree, as the administratrix, asked an order of court authorizing and directing her to distribute among the parties entitled thereto the sum of $ 9,000, derived from the cash and assets turned over by Austin, as guardian, not including the bank stock or the stock of the agricultural association or any part of either.
The heirs of the paternal line claim that they are entitled to the whole of this sum, and that the heirs of the maternal line have no right to share in the distribution.
On the other hand, Essie Pursell claims that the heirs of the maternal line are entitled to take one-half the sum, and that she, as heir and as assignee of the interests of all the other heirs of the maternal line, is entitled to that half."
The court below, in its conclusions of law, decided in favor of Essie Pursel, and rendered judgment accordingly.
The appellants insist that the court erred in its conclusions of law.
The controversy in this case arises upon the construction of the statutes regulating the descent and distribution of estates of deceased persons, and particularly of the first subdivision of section 5 of the act approved May 14, 1852, being section 2626, Burns Rev. 1894, and section 2741, R. S. 1881. That act is entitled "An act regulating descents and apportionment of estates." The first five sections, being sections 2622 to 2626, Burns Rev. 1894 (sections 2467 to 2471, R. S. 1881), are as follows:
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In re Pryor's Estate
... ... 253 N.W. 131, 94 A.L.R. 800; Bishop Trust Co. v ... Thomas, 32 Haw. 140; Tucker et al. v. Brown, ... 185 Okl. 234, 90 P.2d 1071; Rountree v. Pursell, 11 ... Ind.App. 522, 39 N.E. 747; Caruso v. Caruso, 103 ... N.J.Eq. 487, 143 A. 771 ... In this ... connection ... ...
- Rountree v. Pursel