Tapley v. McGee

• Decision Date: 18 December 1854
• Citation: 6 Ind. 45
• Parties: Tapley and Others v. McGee and Others
• Court: Indiana Supreme Court

6 Ind. 45

Tapley and Others v. McGee and Others

Supreme Court of Indiana

December 18, 1854

ERROR to the Ohio Probate Court.

The decree is reversed with costs. Cause remanded.

J. W Spencer and P. L. Spooner, for plaintiffs.

D. S Major, for defendants.

OPINION

Davison J.

At the February term, 1850, the clerk of the Ohio Probate Court reported to that Court that he had, in vacation, granted to Daniel Tapley, Jerusha Brown and Hazlett E. Dodd letters of administration upon the estate of John M. Daniels, deceased, who died intestate. Whereupon they moved the Court to confirm their appointment; but the Court refused the motion, declared the letters granted to them by the clerk void, and, in their stead, appointed Thomas Kempton and Lot North administrators of said estate. Kempton and North, at the November term, 1850, filed their petition, representing that John, Nancy, James, Darius and Boone McGee were the heirs at law of the said Daniels; that they were minors, and one Joseph Owens was their guardian. The petition prays an order directing the estate to be reduced to assets, and that the administrators be authorized to make settlement with said heirs, &c.

The record shows that at a subsequent day of that term, the Court heard evidence in support of the heirship of said minors, and adjudged them to be the heirs of said decedent, and authorized the administrators to settle with them, or their legally constituted guardian; but directed said administrators not to make distribution of the estate until further order of the Court.

It also appears by the record, that Kempton and North, at the February term, 1851, by petitio n, represented that they had in their hands moneys belonging to said estate, more than were sufficient to satisfy all the debts against it, and prayed authority from the Court to pay over to James S. Jelly, the agent and attorney of John, James, Nancy, Darius and Boone McGee, the heirs aforesaid, all the moneys then in their hands, and such other money as they might thereafter collect, belonging to the estate, and take his receipt for the same.

Upon a final hearing of the petition, the Court made an order in accordance with the above prayer, directing the administrators to pay over to Jelly, as such attorney and agent, all moneys then in their hands, &c., and take his receipt, &c.

This order, we think, is erroneous. The heirs were minors, and for that reason, were not competent to appoint an agent or...