State ex rel. McClamrock v. Gregory
| Decision Date | 27 June 1889 |
| Docket Number | 12,707 |
| Citation | 22 N.E. 1,119 Ind. 503 |
| Parties | The State, ex rel. McClamrock et al., v. Gregory et al |
| Court | Indiana Supreme Court |
From the Warren Circuit Court.
The judgment is reversed, and the court is ordered to grant a new trial, and to proceed in accordance with this opinion.
J McCabe and E. F. McCabe, for appellants.
L Nebeker, H. H. Dochterman and C. V. McAdams, for appellees.
This case has been in this court once before, but the opinion throws no light upon the questions now involved. State ex rel., v. Gregory, 88 Ind. 110.
The action is brought upon an administrator's bond, and the complaint is made up of two paragraphs. The first paragraph alleges that one Levin T. Miller was appointed administrator of the estate of Isaac Croy, by the Warren Circuit Court, and that the appellees were the sureties on his bond; that as such administrator the said Miller collected large sums of money belonging to his trust for which he failed to account but converted the same to his own use.
The second paragraph alleges that before the appointment of the said Miller as administrator he collected a large sum of money as the agent of one Alexander Croy, who had been appointed administrator of the estate left by the decedent in Davis county, Missouri, by the probate court of that county, for which he failed to account, but converted the same to his own use, never having inventoried or charged himself with the same. It is further alleged that there was other indebtedness in the county of Warren, amounting to one thousand dollars, which, as such administrator, the said Miller failed to collect, whereby the estate was damaged in the sum of one thousand dollars. Whether the conversion took place before or after Miller became administrator does not appear.
The case was put at issue and tried by the court, without the intervention of a jury, and at the request of the parties a special finding was made, and judgment given for the appellees.
The appellees insist that the judgment shall be affirmed; therefore we are not called upon to decide any questions presented by the cross-errors assigned, except so far as they may be involved in a consideration of the errors assigned by the appellant. Thomas v. Simmons, 103 Ind. 538, 2 N.E. 203.
The substantial facts stated in the special finding are as follows: Isaac Croy, who in his lifetime was somewhat of a cosmopolite, died in the State of Iowa, intestate, July 26th, 1876. At the time of his death he had property in Missouri, in Iowa, and in Montgomery and Warren counties, Indiana; on the 8th day of September, 1876, Alexander Croy was, by the probate court of Davis county, Missouri, appointed administrator of the decedent's estate, and after his appointment he made Levin T. Miller, of Warren county, Indiana, his attorney in fact, to collect certain moneys due the decedent from persons living in the said county of Warren, and by virtue of said authority the said Miller collected the sum of fifteen hundred dollars, for which he never accounted to the said administrator, nor to any one else; that on the 4th day of February, 1878, the said Levin T. Miller was, by the clerk of the said Warren Circuit Court, appointed administrator of the estate of the said decedent, Isaac Croy, and on the 4th day of April, 1878, the Warren Circuit Court confirmed the said appointment; that on the 1st day of July, 1880, the court removed Miller from his said trust, and the relator became administrator de bonis non of the estate; that during the time Miller was acting in his fiduciary capacity he received, of the assets of said estate, the sum of $ 577.70, and paid out the sum of $ 588.10; that after the said Miller became administrator he failed to inventory the said fifteen hundred dollars, or any part of it, which he had collected as the agent of the Missouri administrator, and failed to charge himself therewith in any way, notwithstanding he had the same under his control.
At the time of Miller's appointment as administrator he gave the bond in suit, which we will set out: "Know all men, that we, Levin T. Miller, Walter B. Miller, James C. Miller, John Gregory, and Benjamin R. Gregory, are bound unto the State of Indiana in the penal sum of four thousand dollars, for the payment of which we jointly and severally bind ourselves, our heirs, executors and administrators; sealed and dated this 4th day of February, 1888. The condition of the above obligation is, that the said Levin T. Miller shall faithfully discharge the duties of his trust as administrator of the estate of Isaac Croy, deceased, according to law, then the above obligation to be void, else to remain in full force.
Levin T. Miller.
After the signatures is the following endorsement on the bond: "Approved by me this 4th day of February, 1878." That before the appellees signed the bond the said Levin T. Miller had requested them to do so, with his two brothers, whose names appear in the body thereof, as his sureties, and they consented so to do, after which, at the instance of the said Levin T. Miller, the clerk of the Warren Circuit Court drew the bond as given above, and afterwards, and on the same day, the appellees went to the clerk's office, examined the bond, and finding the five names in the body thereof, signed it, with the expectation and understanding that it would be signed by the other parties. After the appellees signed the bond they left it on the table in the clerk's office and under the control of the clerk. Walter B. Miller and James C. Miller were financially responsible, but they at no time signed the bond.
The court states as conclusions of law four propositions, but as the third one is wholly immaterial to the questions before us for consideration, we will only refer to the other three of them. These are: 1. That it was the duty of Miller to have inventoried and charged to himself as administrator the amount due from him individually on account of collections as the agent of the administrator in Missouri. 2. That he fully paid over and accounted for all assets that came into his hands after his appointment as...
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