State, ex rel. Homer v. Barrett

• Citation: 22 N.E. 969,121 Ind. 92
• Decision Date: 08 November 1889
• Docket Number: 13,849
• Parties: The State, ex rel. Homer, Administrator, v. Barrett et al
• Court: Supreme Court of Indiana

22 N.E. 969

121 Ind. 92

The State, ex rel. Homer, Administrator, v. Barrett et al

No. 13,849

Supreme Court of Indiana

November 8, 1889

From the Posey Circuit Court.

Judgment affirmed.

E. D Owen, W. Loudon and F. P. Leonard, for appellant.

A. P Hovey, G. V. Menzies and E. M. Spencer, for appellees.

OPINION

Coffey, J.

This was a suit, in the court below, upon an administrator's bond, in the usual form. The complaint alleges the appointment of the appellee, George M. Barrett, as the administrator of the estate of George A. Barrett, deceased; the execution of the bond in suit with the appellee Williams and one William Barrett as sureties; the removal of the appellee George M. Barrett, from the trust, by order of the court, and the appointment of the appellant as his successor. The complaint then alleges seven supposed breaches of the bond, substantially as follows:

First. That an agreement was entered into, in 1874, between the administrator and the heirs and creditors of George A. Barrett, deceased, to the effect that the administrator should take the rents and profits of certain land, of which the said George A. Barrett died seized, and pay therewith any residue of the debts of the deceased remaining after the personal property was exhausted; that under said agreement said administrator collected of said rents the sum of $ 2,500; that he accounted for $ 700, leaving $ 1,800 unaccounted for.

Second. Alleging the agreement set out in the first breach, and a failure on the part of the administrator to collect rents which he might have collected to the amount of $ 3,000.

Third. That at the time of his removal said administrator had collected the sum of $ 1,500, and the further sum of $ 890, of the money belonging to said estate, for which he failed to account.

Fourth. That in 1876, 1877 and 1878, said administrator had ample funds in his hands belonging to said estate to pay all its liabilities; that he negligently and wrongfully failed to pay the same, by reason of which large sums of interest have accumulated, and other claims have been filed amounting to $ 3,000, which would have been saved to said estate except for such wrongful conduct on the part of said administrator.

Fifth. That said administrator was indebted to said estate in the sum of $ 6,500 for the purchase-price of certain real estate; that he has never paid said $ 6,500, or any part thereof, nor reported the same as due from him to said estate, and that at the time of his removal the same was due and unpaid.

Sixth. That in consideration of the execution of a title bond to said administrator by George A. Barrett, deceased, he agreed with said deceased, and since his death agreed with his heirs, in consideration of the conveyance by them to him of said land, to pay certain debts of the deceased; that he has paid certain of said debts and charged the amount so paid to said estate in his reports, and has failed to pay the remainder thereof, amounting to $ 4,000, which is due and unpaid.

Seventh. That said administrator filed his final report in which he claimed credit as coming to him a balance of $ 2,769.65, when he is, and was, indebted to said estate in the sum of $ 6,000.

On motion of the appellee Williams, the surety, breaches one, two, six and seven were struck out by the court, and the appellant excepted.

The appellee Barrett filed an answer in three paragraphs, the first of which is a general denial.

The second is a counter-claim against the estate, in which he avers that on the 11th day of November, 1875, the estate was indebted to him in the sum of $ 285.72 on a settlement made by him at the November term of the Posey Circuit Court, which settlement was duly approved by said court; that the estate of said George A. Barrett was justly indebted to him in the sum of $ 555.72, on settlement made and confirmed by the Posey Circuit Court at the November term, 1876; and that said estate is further indebted to him in the sum of $ 2,769.65, on vouchers filed at the February term, 1886, of the Posey Circuit Court, making a total of $ 3,325.37, for which he demands judgment.

3d. That he fully administered the estate of the said George A. Barrett, and all the rights, credits, moneys and effects of said estate which came into his hands to be administered, and that said estate is now indebted to him in the sum of $ 3,325.37, for which he demands judgment.

The appellee Williams filed an answer in five paragraphs, the first being a general denial.

The second avers that said administrator fully administered the estate of the said George A. Barrett, and fully accounted for and paid out all the moneys that came into his hands as such administrator before the commencement of this suit.

3d. The third avers that he executed the bond in suit with one William Barrett as his co-surety; that in 1877 said William Barrett, in a proper proceeding for that purpose, was released from said bond by order of the proper court, without his knowledge or consent, and that said administrator thereupon, by order of the court, executed a new bond, with surety, to the approval of said court; that if said administrator has been guilty of any breach of his bond it was since the execution of said new bond, and not before.

4th. The fourth is the six years statute of limitations.

5th. The fifth avers that said administrator, since his appointment in 1871, has made his yearly reports, up to the year 1886, to the proper court, which show that he has fully administered said estate, which reports were duly approved by said court, and ordered spread of record upon the records of said court, which was done; that said reports import absolute verity, and are now standing unimpeached and unattacked by any one for fraud or mistake, or any other cause.

The court sustained a demurrer to the fourth and fifth paragraphs of the separate answer of the appellee Williams, and overruled it as to the second and third.

The court also overruled a demurrer to the second and third paragraphs of the separate answer of the appellee Barrett.

A trial by the court resulted in a finding for the appellant upon his complaint, assessing the damages at one cent, and a finding in favor of the appellee Barrett, upon his counter-claim, assessing his damages at $ 3,325.37. Over a motion for a new trial proper judgments were rendered on these findings.

The appellant assigns as error:

First. That the court erred in overruling the demurrer to the second and third paragraphs of the answer of the appellee Barrett.

Second. That the court erred in overruling the demurrer to the second and third paragraphs of the answer of ...