Spray v. Bertram

• Decision Date: 23 May 1905
• Docket Number: 20,635
• Citation: 74 N.E. 502,165 Ind. 13
• Parties: Spray v. Bertram, Administrator, et al
• Court: Indiana Supreme Court

74 N.E. 502

165 Ind. 13

Spray v. Bertram, Administrator, et al

No. 20,635

Supreme Court of Indiana

May 23, 1905

From Jackson Circuit Court; Thomas B. Buskirk, Judge.

Final report by Joseph Bertram as administrator of the estate of Bernhardt Lahrman, deceased, to which Elizabeth Spray and others except. From a decree overruling such exceptions Elizabeth Spray appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Affirmed.

Branaman & Branaman and William H. Endebrook, for appellant.

Long & Long and J. F. Applewhite, for appellee, Bertram.

Gillett J. Montgomery, J., did not participate.

OPINION

Gillett, J.

Upon the filing of the final settlement report of Joseph Bertram as administrator of the estate of Bernhardt Lahrman, deceased, appellant and two others, of the next of kin of said decedent, filed an exception to the current and final reports of said administrator. The exception challenged the propriety of the action of the administrator in making distribution on the basis of charging exceptors with certain advancements made to them respectively, and as a reason for their objection they alleged that a written contract existed between all of the next of kin, relative to the distribution of the personalty of said estate, which it was claimed rendered it improper to consider such advancements. It appears from the record that the exception was submitted to the court for trial, and that, after hearing the evidence, the cause was taken under advisement. It further appears from the transcript, by an entry dated some three months after the trial, that the court, "being now sufficiently advised upon the evidence, finds for the administrator that the exceptions heretofore filed to the final report in said estate should be, and they now are, overruled." By a subsequent order it is shown that proof of notice of final settlement was made, and that the court, "after having heard all the evidence and proofs to be adduced in the heirship of said estate," found that the advancements mentioned in the administrator's reports had been made as set forth therein, and ordered the amount paid in by the administrator distributed as recommended in his final report. The exceptors filed a motion for a new trial, which was overruled.

Appellant assigns as errors of the trial court that it approved each of said administrator's reports; that it overruled the exception to said reports, and that it overruled the motion for a new trial. The evidence has not been brought into the record by a bill of exceptions, and, aside from setting out in the transcript a copy of the alleged agreement of the next of kin, there has not been the slightest attempt to get before us the evidence which was heard by the court.

The report of an administrator and an exception thereto stand as the complaint and answer of the respective parties, and the cause is to be tried upon the issue thus raised. Johnson v. Central Trust Co. (1903), 159 Ind. 605, 65 N.E. 1028; Brownlee v Hare (1878), 64 Ind. 311; Wysong v. Nealis (1895), 13 Ind.App. 165, 41 N.E. 388; In re Hart (1891), 60 Hun 516,...