State ex rel. Gentry v. O'Byrne

• Decision Date: 23 February 1943
• Docket Number: 27833.
• Parties: STATE ex rel. GENTRY v. O'BYRNE, Judge.
• Court: Indiana Supreme Court

46 N.E.2d 687

221 Ind. 282

STATE ex rel. GENTRY v. O'BYRNE, Judge.

No. 27833.

Supreme Court of Indiana

February 23, 1943

D. A. Myers and John E. Osborn, both of Greensburg and V. J. McCarty, of Brookville, for relator.

Kothe & Shotwell, of Indianapolis, for respondents.

SHAKE Judge.

This is an original action for a writ of mandate against a circuit court and the judge thereof. The petition recites that Leatha Horn died a resident of Franklin County on March 16, 1939 survived by her father, a brother, and three sisters, none of whom were or are residents of said county. A purported will was offered but the probate thereof was resisted and denied. Prior to or during that litigation the court appointed Orville W. Hubbard as special administrator of the estate of said decedent. The date of his appointment and the reasons that prompted it are not disclosed, but authority therefor is found in § 6-308, Burns' 1933, § 3044, Baldwin's 1934, which authorizes the naming of a special administrator to conserve the assets during a will contest, and we must indulge the presumption that such appointment was justified. On May 7, 1942, the relator filed in the respondent court his verified application to be appointed general administrator of said estate. He recited in his application that the time allowed for filing a bill of exceptions in the action to resist the probate of said offered will, and all possibility of appeal from the judgment denying such probate would expire the next day, May 8, 1942; that said decedent left an estate of a value in excess of $15,000, and that he was the largest creditor with claims aggregating more than $10,000; and that he possessed all the necessary qualifications to be the general administrator of said estate.

Two days after the filing of the relator's application, said Orville W. Hubbard made an application for letters, supported by the request of all the decedent's surviving heirs that he be so appointed. There were intermediate motions which we need not notice, and subsequently the relator filed a motion and affidavit for the appointment of a special judge to pass upon his application, in which he objected to the presiding judge selecting the special judge, or submitting names from whom a special judge might be selected. On motion of Hubbard the relator's affidavit for the appointment of a special judge was stricken from the files, after which the presiding judge entered the following order: 'And thereupon the Court of the Court's own motion, and without regard to or action upon any pending application herein, formally names and appoints Orville W. Hubbard as General Administrator of the estate of said decedent, * * *.' Hubbard thereupon tendered his bond which was approved, and letters of general administration were ordered issued to him.

We ordered an alternative writ commanding the Franklin Circuit Court and its judge to strike from the record of said court the aforesaid order purporting to appoint the said Orville W. Hubbard as general administrator of the estate of said decedent, and to grant the relator's motion and affidavit for a change of venue from the judge; or in the alternative, that they show cause, on or before a day named, why the same should not be done. Within the time allowed, the said respondents filed in this court what they denominate a demurrer to the complaint and alternative writ of mandate.

In State ex rel. Kensinger v. Cox, Judge, 1923, 193 Ind. 519, 141 N.E. 225, which was an original action for a writ of mandate, it was observed that no means have been provided in this court for making up issues and holding formal trials in such proceedings. It may be added that, by reason of their nature, original actions for mandate and prohibition almost invariably present only questions of law, and that in very rare instances has this court been called upon to determine issues of fact. As a consequence, we have not felt any necessity for promulgating formal rules regulating the practice in such proceedings. State ex rel. Fry v. Superior Court of Lake Co., 1933, 205 Ind. 355, 186 N.E. 310, 312, was an original action for a writ of prohibition in which a temporary writ issued. In response to an order to show cause why the writ should not be made permanent, the respondents demurred to the petition. After quoting from State ex rel. Kensinger v. Cox, Judge, supra, this court said: 'The respondents should have made a return showing any reason in fact or in law why the writ should not be obeyed. In this case the writ is based upon the verified complaint of the plaintiff below and the temporary restraining order issued thereon. It is clear that no controversy could arise concerning the facts. The only question involved is the legal one as to whether the court below had jurisdiction. The so-called demurrer and memoranda, and briefs in support thereof, deal with that question and we will treat them as a return.'

From these authorities it may be deduced that the only pleading contemplated on behalf of a respondent in an original action for a writ of mandate or prohibition in this court is a return; and, as has been said, a respondent may in such return advance any reason in law or in fact why the writ should not be obeyed. In the instant case the so-called demurrer will therefore be considered as sufficient to present questions of law for our determination.

The first question is whether the relator was entitled to a judicial determination of his alleged right to administer upon the estate of the decedent. In the absence of a restrictive statute, a probate court has a wide latitude in the choice of the personal representative of an estate, and its determination will not be disturbed except for an abuse of discretion. 21 Am.Jur., Executors and Administrators, § 58. The same is true when the selection is made from a group of two or more persons equally entitled to be appointed. 1 Henry's Probate Law, 3d Ed., § 31. And when preferences are created by statute, the court may, nevertheless, refuse to appoint one who is unqualified or unfit. Studabaker v. Faylor, 1917, 66 Ind.App. 175, 114 N.E. 772. Where, however, the statute commands, and does not merely direct, that letters shall be granted to certain designated persons, the court may not ignore the mandate of the law, without some proper reason. Cooper v. Cooper, 1909, 43 Ind.App. 620, 88 N.E. 341.

Our statute provides that letters of administration shall be granted in the following order:

'First. To the widow or widower.

'Second. To the next of kin.

'Third. To the largest creditor applying and residing in the state.

'Fourth. If no person thus entitled to administer shall apply within twenty (20) days after the death of the intestate, the clerk or court shall appoint a competent inhabitant of the county, to whom letters shall issue.' § 6-301, Burns' 1933, § 3030, Baldwin's 1934.

At first glance it might appear that inasmuch as three years had elapsed after the death of Mrs. Horn, and before any application was made for general letters of administration the court was justified in proceeding under the fourth clause of the above statute to appoint any competent inhabitant of the county. We may not overlook the fact, however, that in the meanwhile it had been undetermined whether the appointment of an administrator was either necessary or proper. Had the purported will been admitted...