Rowley v. Fair

• Court: Indiana Supreme Court
• Writing for the Court: NIBLACK
• Citation: Rowley v. Fair, 104 Ind. 189, 3 N. E. 860 (Ind. 1885)
• Decision Date: 15 December 1885
• Parties: Rowley, Adm'r, v. Fair.

104 Ind. 189

3 N.E. 860

Rowley, Adm'r,

v.Fair.

Supreme Court of Indiana.

Filed December 15, 1885.

Appeal from De Kalb circuit court.

W. L. Penfield and P. V. Huffman, for appellant.

I. Stratton and W. H. Dills, for appellee.

NIBLACK, C. J.

This was an action by James D. Rowley, administrator of the estate of James Quince, deceased, unadministered, against David W. Fair, for the alleged conversion to his own use of a certain bank certificate of deposit and other evidences of indebtedness claimed to have been the property of the estate. Some questions were reserved upon the pleading, but the special finding of the facts made by the circuit court, and the conclusions of law drawn therefrom, fairly present all the questions really involved in this appeal.

The facts, as they were specially found, were in effect as follows:

That prior and up to the fifteenth day of August, 1882, the decedent, James Quince, was trustee of Butler township, in De Kalb county, in this state, and that on that day, while holding said office, he died intestate; that the widow, Lorena Quince, was thereupon, on the twenty-second day of August, 1882, appointed administratrix of the estate of the decedent, and, after duly qualifying, entered upon her duties as such administratrix. That on the twenty-first day of August, 1882, the defendant, Fair, was appointed trustee of the said township of Butler, and immediately took upon himself the duties of the office, as the successor of the decedent. That at the time of the death of the said James Quince he had on deposit, at the banking-house of John L. Davis, at Auburn, in this state, sums of money as follows: One hundred and seventy dollars, as balance due on a running account, subject to his check, and standing to his credit in his individual name, and eight hundred dollars, payable to him individually on demand, for which he held a certificate of deposit, dated June 17, 1882. That all of the money thus on deposit, and standing to the individual credit of the decedent in said banking-house, was money which he, as such trustee, had received from the treasurer of De Kalb county, and which consequently belonged to the said township of Butler. That the decedent, at the time of his death, was also the holder of certain promissory notes, payable to him individually, as follows: Two notes against one Wesley I. Work, one for forty dollars, and the other for twenty-eight dollars; one note against one William McKinley, for thirty dollars, upon which some interest was due; one note against one Milford Clark, on which the sum of twenty-three dollars was then due; three notes against one Perry Fitch, one for one hundred and thirty dollars, another for one hundred dollars, and the remaining one for forty dollars, all with some interest also due upon them. That all of said notes, except the one against Milford Clark, were given to the decedent for money belonging to said township of Butler, as was respectively known to each of the makers thereof at the time such notes were executed and the money was obtained upon them. That the certificate of deposit and notes above named came into the hands of Lorena Quince upon her appointment as the administratrix of the estate of the decedent. That upon demand made of her by the defendant, she surrendered said certificate and notes to him as the trustee of the said township of Butler, each acting in good faith, and believing it was the duty of the said Lorena to so surrender the same as the property of such township. That the estate of the decedent is insolvent. That the said Lorena had resigned her trust as the administratrix of said estate, and the plaintiff had been appointed as her successor in the administration of the same. That when the decedent died, there was in his hands, as the trustee of the township in question, the sum of $1,765. That after applying the certificate of deposit and notes, turned over by Mrs. Quince to the defendant, in extinguishment of the amount due from the decedent to the township, there still remained a balance due from the decedent's estate to the township. That no claim had been made on behalf of the estate of the decedent to the money and notes turned over to the defendant by Mrs. Quince until after the former had, in good faith, applied the same to the use of the township. That the total amount which would have been due at the time of the trial on all the notes, except the Clark note, as above stated, turned over to the defendant, was $431, which was additional to the sum of $800, and the balance of $170, respectively, on deposit in the...