Russell v. Moore, 19368

• Decision Date: 25 February 1960
• Docket Number: No. 19368,19368
• Citation: 164 N.E.2d 670,130 Ind.App. 351
• Parties: Robert L. RUSSELL, Administrator of the Estate of John Luther Waugh, Deceased, Clara May Waugh, Appellants, v. Faye MOORE, Helen Sullivan, Hallie Carter, Cindy Hamilton, Thomas Waugh, Joe Waugh, Appellees.
• Court: Indiana Appellate Court

Page 670

164 N.E.2d 670

130 Ind.App. 351

Robert L. RUSSELL, Administrator of the Estate of John

Luther Waugh, Deceased, Clara May Waugh, Appellants, v. Faye MOORE, Helen Sullivan, Hallie Carter, Cindy Hamilton, Thomas Waugh, Joe Waugh, Appellees.

No. 19368.

Appellate Court of Indiana, In Banc.

Feb. 25, 1960.

Johnston & Mankin, Terre Haute, for appellants.

Buena Chaney, Terre Haute, for appellees.

MYERS, Chief Justice.

This is an action upon a petition to determine heirship and to set aside letters of administration improvidently issued, brought by appellees against appellants, in which petition appellees alleged that they were nieces and nephews of the decedent, John Luther Waugh, as against appellant, Clara May Waugh, who claimed to be the common-law widow of the decedent, and who originally requested that letters of administration be issued to appellant, Robert L. Russell, as Administrator. An answer was filed in general denial, a trial was held before the Probate Commissioner of the Vigo Circuit Court, and, based upon his findings, the Judge of the Vigo Circuit Court entered judgment in favor of appellees, declaring that appellant, Clara May Waugh, was never married to the decedent and was not an heir. The judgment declared that letters of administration previously issued to appellant Russell were improvidently issued, and revoked the same and set aside the appointment of appellant Russell as Administrator. Appellants filed a motion for a new trial, which was overruled and this appeal followed.

The judgment was entered on April 20, 1959. On April 28, 1959, the court appointed one Daniel E. Kyle as Special Administrator, who accepted the appointment, duly qualified, posted bond and received letters of special administration. The motion for a new trial was overruled on May 18, 1959.

On July 10, 1959, appellant, Clara May Waugh (otherwise known as Clara May Drone and Clara May Draughn), filed a verified claim for work, labor, services and monies due her as housekeeper, servant and employee of the decedent during his lifetime, wherein she claimed a total of $13,625.60.

After obtaining an extension of time, appellants filed their assignment of error and transcript on the 4th day of September, 1959. In accordance with Rule 2-15 of the Rules of the Indiana Supreme Court, appellants had thirty days therefrom, the last day being the 4th day of October, 1959, within which to file their brief. On the 2nd day of October, 1959, appellants filed in the Clerk's Office their petition for an extension of time within which to file their brief. This petition was granted, no objections having been filed thereto. Pursuant to the granting of a further extension of time, appellants filed their brief on December 4, 1959.

On the 28th day of December, 1959, appellees filed their motion to dismiss or in the alternative to affirm the appeal, together with their brief in support thereof. The points raised by appellees in their argument in support of said motion will be considered as presented in their brief

Appellees claim that appellant, Clara May Waugh, voluntarily acquiesced in and recognized the validity of the judgment of the trial court finding that she was not the common-law wife of the decedent, by her action in filing a verified claim for monies due her as a servant and housekeeper and for work and labor rendered as such.

The record shows that the decedent, John Luther Waugh, died on the 28th day of December, 1958, a resident of Vigo County, Indiana; that letters of administration were issued to Robert L. Russell on or about January 12, 1959; that the first publication of notice was on January 21, 1959. The Indiana Probate Code requires that all claims against a decedent's estate, with certain exceptions, must be filed with the court in which such estate is being administered within six months after the date of the first published notice to creditors or be forever barred. Section 7-801, Burns' 1953 Replacement. The claim filed by Clara May Waugh was not within the exceptions. It has been held by this court that this statute is not a statute of limitation, but constitutes a denial of a right of action and imposes a condition precedent to the enforcement of such right of action. Otolski v. Nowicki's Estate, Ind.App.1959, 158 N.E.2d 296. See, also, Wilson v. Betz Corporation, Ind.App.1959, 159 N.E.2d 402, 408.

In view of the fact that the appeal could be decided adversely to appellant, Clara May Waugh, and that it could be reasonably anticipated that the time within which such appeal would be perfected, briefs filed and a decision rendered, would be much beyond the date when claims could be filed against the estate, appellant, Clara May Waugh, could be considered as merely protecting her interests in the event of an adverse decision. Not having filed a claim, she would be forever barred following such a decision by this court. Under the circumstances, therefore, we do not believe that she voluntarily acquiesced in and recognized the validity of the judgment, or took a position inconsistent with the theory of the judgment, when she filed her claim against the estate.

Appellees say that notice sent by the Clerk of the Indiana Supreme and Appellate Courts, on the 14th day of August, 1959, which granted appellants an extension of time within which to file their transcript and assignment of error, purported that the Supreme Court of Indiana had passed upon the petition. The record shows that the petition was duly filed by appellants in the Appellate Court, and the Clerk's notice if it stated that the Supreme Court had granted the extension of time was merely a clerical error on the part of the Clerk and would not affect the jurisdiction of this court.

The appellees object to the assignment of error because it shows that 'Robert L. Russell, Administrator of the Estate of John Luther Waugh, Deceased,' is one of the appellants; that Robert L. Russell was removed as Administrator and cannot appeal as such. We agree with appellees' contention that appellant Russell cannot appeal in his representative capacity. The judgment of removal was self-executing and took effect immediately. 'Thereafter it had no more standing as an administrator than a dead man.' Union, etc., Trust Co. v. Eddingfield, 1922, 78 Ind.App. 286, 289, 134 N.E. 497, 498. However, we refer to Judge Royse's opinion on motion to dismiss in Weiland v. Scheuch, 1953, 123 Ind.App. 633, 635, 636, 105 N.E.2d 829, 109 N.E.2d 618, 619, in which it was said:

'The first specification is based on the failure of the original transcript herein to show the judgment herein. This was cured by the return of the clerk of the Probate Court of Marion County to the writ of certiorari referred to above- 'The second asserts 'No appeal can be taken by an executor or administrator, as such, after their removal since such removal terminates their authority as executor or administrator notwithstanding a timely appeal and that any right of appeal by the former executor or administrator must be taken by them individually.'

'In the case of Sibley v. Lewis et al. 1947, 117 Ind.App. 655, at pages 658, 659, 75 N.E.2d 420, at page 421, where the same contention was made, this court, speaking through Judge Crumpacker, said:

"We think suits to remove guardians, however styled, are necessarily brought against the individual. The very purpose of the suit is to reach the individual and strip him of his representative powers. It is the individual who is laid hold of and removed from his trust. It is the individual who fails to perform his duties as a guardian and it is the individual who takes the oath. The judgment must necessarily be against the individual that he be and is thereby removed from his trust. So in our opinion this suit, making 'William W. Sibley, guardian of Janet May Sibley and Sue Ann Sibley' a party defendant, was, in fact and law, instituted against William W. Sibley as an individual and the words 'guardian, etc.' are merely descriptio personae and properly used to designate the matter concerning which said Sibley is being sued. * * * It is apparent that this judgment is against William W. Sibley individually and an appeal from such judgment, as an individual, is authorized by statute. § 2-3201, Burns' 1946 Replacement....