State ex rel. Wright v. Tomlinson

• Decision Date: 28 January 1897
• Docket Number: 2,065
• Citation: 45 N.E. 1116,16 Ind.App. 662
• Parties: STATE, EX REL. WRIGHT, ADMINISTRATOR, v. TOMLINSON ET AL
• Court: Indiana Appellate Court

45 N.E. 1116

16 Ind.App. 662

STATE, EX REL. WRIGHT, ADMINISTRATOR, v. TOMLINSON ET AL

No. 2,065

Court of Appeals of Indiana

January 28, 1897

From the Montgomery Circuit Court.

Affirmed.

M. E Clodfelter, Claude L. Thompson, George D. Hurley and Frank W Hurley, for appellant.

G. W Paul and H. D. Van Cleave, for appellees.

OPINION

COMSTOCK, C. J.

The complaint in this case is upon the bond of a special administrator, George N. Tomlinson, and his sureties, Wm. Tomlinson and David Hartman.

The complaint is in two paragraphs. A copy of the bond is filed with each paragraph.

The breaches of the bond assigned are that Tomlinson, special administrator, received the sum of $ 1,971.88 which he converted to his own use and the use of others.

Second--That said special administrator failed to preserve the property of the estate which came into his hands.

Third--That said special administrator had knowledge of a large amount of personal property belonging to the estate, and failed and refused to preserve the same for the use of the estate.

Fourth--That $ 2,000.00 came into the hands of said special administrator which he wasted and wrongfully turned over to others, whereby the same was lost to the estate.

The breaches of the bond assigned in the second paragraph of complaint are in effect the same as those assigned in the first.

The appellee, G. N. Tomlinson, filed his separate answer in three paragraphs. The first is a general denial. The second alleges, in substance, that in March, 1894, he was duly appointed and qualified as special administrator of the estate of Austin L. Tomlinson, late of Montgomery county, Indiana, deceased, with bondsmen, as set out in the complaint; that after his appointment there came into his hands the sum of $ 1,971.85 from a certain insurance policy upon the life of his decedent; that Edith Tomlinson, the widow, claimed the money as her own, and demanded the same of him; that she had been substituted as beneficiary in said insurance policy, and threatened to bring suit against this defendant (appellee) for the recovery of the same; and that being unwilling to pay her said money without an order of court, he and the said Edith Tomlinson, by agreement, in good faith, on an agreed statement of facts submitted the question of ownership of said money to the circuit court of Montgomery county, Indiana, and thereupon the court found and adjudged that said money belonged to said Edith, and rendered judgment in her favor, and against appellee, and ordered appellee to pay said money to her, and that afterwards, upon the faith of said order, appellee, acting as such trustee, paid to the said Edith the sum of $ 1,471.88 being the full amount of said money after deducting $ 500.00 therefrom, which he had paid for funeral expenses of decedent on the order of court, with the consent of said Edith; that he paid said balance to the said Edith on the 12th day of April, 1894, and on the 16th day of April, 1894, he filed in said circuit court his report in final settlement of his said trust, showing his compliance with the order of the court; which said report the court approved, and discharged appellee and his sureties from all liability on the bond in suit, which order of approval and discharge were duly entered in the proper record of said circuit court; that this is the same money claimed by the relator and set out in his complaint.

The third paragraph alleges that the money mentioned in complaint did not belong to said estate, but did of right belong to Edith Tomlinson, widow aforesaid, and the administrator had no right to the same.

For first paragraph of reply to the second paragraph of the separate answer of appellee, George N. Tomlinson, appellant, alleges in substance that appellee's appointment as special administrator was procured by fraud and collusion between the special administrator and Edith Tomlinson for the purpose of defrauding the creditors of said decedent; and as a part of the scheme the agreed statement of facts was entered into and submitted to the court, and the order procured for the payment of money to the widow aforesaid.

The second paragraph of appellee's reply to second paragraph of answer admits the filing of the agreed statement of facts entered into by and between the special administrator and Edith Tomlinson, and that the court on said statement adjudged that the proceeds of said policy belonged to said widow, and ordered the payment of the same to her, but avers that the court had no jurisdiction to make such order upon said statement; that the estate was largely indebted, and the order procured for the purpose of defrauding the creditors of the estate, and that after the appointment of the general administrator, relator herein, and upon petition, to which Edith Tomlinson and George N. Tomlinson were made parties, procured the order of said court vacating said order; that the judgment setting aside the order made upon said agreed statement of facts was in full force and effect.

The fourth paragraph of reply to the third paragraph of answer of George N. Tomlinson alleges that George N. Tomlinson having procured himself to be appointed special administrator, having obtained the policy and presented it to the insurance company as special administrator, having surrendered it and received the money thereon, and deposited it in his name as special administrator, etc., he could not afterwards dispute the fact that it was his duty to receive the assets of the estate, preserve the same and turn them over to the regular administrator.

There was also a general denial.

Demurrers to the second and third paragraphs of answer were overruled. Demurrer to the fourth paragraph of reply was sustained and overruled as to the first and second. There was a trial had, and upon request of appellant the court made a special finding of facts, and stated its conclusions of law.

The first error assigned is overruling appellant's demurrer to second paragraph of separate answer of appellee, George N. Tomlinson. Appellee, by the facts averred in this paragraph, seeks to avoid liability on the ground that he, as special administrator, and Edith Tomlinson entered into an agreed statement of facts concerning the ownership of the proceeds of the insurance policy upon which the court ordered the special administrator to pay the money to her, and that after he had complied with the order of the court he made a report of said trust, and resigned therefrom, which report was approved, his resignation accepted and he discharged; that this is the money referred to in the complaint.

This paragraph, while addressed to the whole complaint does not answer that portion of it which avers that the special administrator "wholly neglected and refused to receive more than $ 500.00 of the property and assets of said estate which came to his knowledge and suffered and permitted the same to be wrongfully taken by others and converted to their own use."

The complaint charges a neglect of duty as to money and other assets which he refused to receive. This allegation is not met by this allegation of answer. The demurrer therefore should have been sustained. Farman v. Chamberlain, 74 Ind. 82; Dunn v. Barton, 2 Ind.App. 444, 28 N.E. 717.

The demurrer should have been sustained for another reason. The powers of a special administrator are declared to be by statute "to collect and preserve the property of the testator or of the intestate until demanded by an executor or administrator duly authorized to administer the same when such special letters shall be deemed to be revoked." Section 2391, Burns' R. S. 1894 (2237, R. S. 1881). The question is passed upon in Tomlinson v. Wright, Admr., 12 Ind.App. 292, 39 N.E. 884.

The court says in speaking of the special administrator, appellee in this case, and of the money realized from the insurance policy mentioned in the answer, that "all he [special administrator] was authorized to do with it was to hold and possess it until an administrator shall be appointed and then pay the same to him. He had no authority to allow, or to pay claims or to enter into an agreed case in relation to the money which he had collected as such special administrator." See, also, Cole, Admr., v. Lafontaine, 84 Ind. 446.

The third paragraph of the answer is addressed only to the averment of money in the complaint, alleging that it did not belong to the estate of Austin L. Tomlinson. It is pleaded in bar of the action and as it does not answer the entire complaint, the demurrer should have been sustained. Farman v. Chamberlain, supra.

The fourth assignment of error is the sustaining of the demurrer to the fourth paragraph of reply to the third paragraph of answer of appellee.

It is pleaded as an estoppel, but as we have held that paragraph of answer insufficient, it is not necessary to discuss this ruling.

The court in the special finding of facts found that Austin L Tomlinson was, on the 1st day of March, 1894, and for a long time prior thereto had been a resident of Montgomery county, Indiana, and that on said date while temporarily sojourning at Fullerton, California, he died intestate; that on the 3d day of March, 1894, George N. Tomlinson was, by the clerk of the circuit court of Montgomery county, in vacation, appointed special administrator of the estate of said deceased and executed his bond with his co-defendants in this action, William Tomlinson and David Hartman as his sureties, which is the bond sued on in this action; which bond was duly approved, and he immediately thereafter qualified and entered upon the discharge of his duties as such special administrator; that on the 26th day of January, 1892, the said Austin L. Tomlinson, then an unmarried man,...