The Michigan Trust Co. v. Probasco
| Decision Date | 13 March 1902 |
| Docket Number | 4,024 |
| Citation | 63 N.E. 255,29 Ind.App. 109 |
| Parties | THE MICHIGAN TRUST COMPANY, EXECUTOR, v. PROBASCO, ADMINISTRATOR |
| Court | Indiana Appellate Court |
Rehearing denied May 20, 1902.
From Whitley Circuit Court; J. W. Adair, Judge.
Action by William J. H. Probasco, administrator de bonis non of the estate of Aaron C. Probasco, deceased, against the Michigan Trust Company, executor of the will of Lucina Probasco deceased, and others, for the recovery of property in possession of defendant alleged to belong to plaintiff's estate and which defendant's decedent as former executor had failed to administer upon. From a judgment for plaintiff defendants appeal.
Affirmed.
R. C. Bell, N. D. Doughman, O. N. Heaton and Walter Olds, for appellant.
W. G. Colerick and G. Colerick, for appellee.
Suit by appellee against the Tri-State Building and Loan Association and appellant, a foreign corporation, to determine the title to a certificate of building and loan stock. The complaint avers that Aaron C. Probasco died on the 13th day of April, 1890, testate, and that his will was probated three days thereafter. He bequeathed to his wife, Lucina Probasco, the furniture and other items of personal property in his residence, known as No. 30 Douglass avenue, in the city of Fort Wayne, and the sum of $ 1,000 cash. He also gave her the income during her life of all the residue of his property, both real and personal, and after her death he directed that all this property should go to his five children. Lucina Probasco qualified as executrix, and filed what purported to be a complete inventory of all the personal estate of the decedent, and afterwards filed her final settlement report, which was approved. In March, 1898, Lucina Probasco died in the state of Michigan, where she resided, testate, and by an inventory of the supposed assets of her estate it appears that at the time of her death she held and was in possession of personal property of the value of $ 6,000, being the proceeds of property which was owned by Aaron C. Probasco at the time of his death, and which she had at divers times both before and after his death appropriated to her own use, and had converted into other kinds of property, and which, as executrix, she failed to embrace in the inventory and appraisement of his estate, and that the same was never administered upon nor accounted for by her as such executrix. A part of the proceeds of this property is a certificate of stock of the Tri-State Building and Loan Association of the value of $ 4,000, which was issued to her, and which was in her possession at the time of her death, and is now in the possession of appellant, as executor of her will, which executor claims such certificate as a part of the assets of her estate. In March, 1898, appellee was appointed administrator de bonis non of the estate of Aaron C. Probasco, and qualified as such, and filed an inventory and appraisement of certain assets, including the certificate of stock above set forth. The appellee asks the court to adjudge that the certificate constitutes a part of the estate of his decedent, and that appellant has no interest therein, and that the loan association be enjoined from paying the certificate to the appellant, and that appellant as such executor be enjoined from collecting the same, and that a receiver be appointed to take possession of the same during the pendency of the action.
Prior to the act approved March 5, 1891, the approval of the final settlement and account of an administrator was an adjudication of whether the administrator had turned into the estate all the personal estate belonging to it, and all claims of every nature due to it; and such adjudication became final and conclusive unless appealed from or assailed for mistake or fraud within three years after the final settlement. The above act, § 2395 Burns 1901, provides that, when it shall be shown to the court that an administrator or executor has been finally discharged, and that there is no administration pending in this State, and that there are assets of the estate within the jurisdiction of this State that have not been, but should be, administered, then, upon application of any creditor, legatee, or distributee, the court may appoint an administrator de bonis non, who has the duties and powers of an executor or administrator.
It is clear the legislature intended a change from the former rule, so that an estate might have the benefit of assets omitted in the former administration, although there had been a previous final settlement. The former settlement stands, and, without setting it aside, the estate may be opened up for the purpose of administering such omitted assets. The former settlement continues to be a final adjudication as to all matters except these omitted and unadministered assets. "By the passage of this act," said the court in Barnett v. Vanmeter, 7 Ind.App. 45, 33 N.E. 666, "it was doubtless intended to reach any assets, for the benefit of creditors, legatees, or heirs which had not been administered upon in the former administration." Wahl v. Schierling, 11 Ind.App. 696, 39 N.E. 533. In appointing appellee administrator de bonis non the court determined that no administration was pending in this State, and that there were in this State unadministered assets of the estate which had not been, but which should be, administered. When appointed, he was given the same power and charged with the same duties as a general administrator. Every presumption is in favor of the validity of the appointment, and it can not be attacked collaterally. In a suit by such administrator he need only aver that he is administrator, and his right to sue can not be questioned except by plea in abatement denying the right. Barnett v. Vanmeter, supra; Nolte v. Libbert, 34 Ind. 163; Kelley v. Love, 35 Ind. 106; McDowell v. North, 24 Ind.App. 435, 55 N.E. 789; §§ 2446, 2447 Burns 1901.
This is not a suit for the conversion, by the executrix, of funds belonging to the estate of Aaron C. Probasco. The claim here sued for never came into the possession of Lucina Probasco as executrix of the will of her decedent. Such a suit could be maintained by appellee, as administrator de bonis non of the estate of Aaron C. Probasco, upon the bond of Lucina Probasco as executrix. § 2613 Burns 1894; Lucas v. Donaldson, 117 Ind. 139, 19 N.E. 758; Ormes' Estate v. Brown, 22 Ind.App. 569, 52 N.E. 1005.
The complaint must proceed upon the theory that Lucina Probasco, as the wife, and afterwards as the widow, of Aaron C. Probasco, appropriated to her own use property belonging to him, and that at her death she still had this property. It goes upon the theory, not that she did any wrong as executrix, but that during her lifetime and at her death she held property belonging to the estate of her husband, which property consists of a certificate of building and loan stock issued by an Indiana corporation in the county where suit was brought. The complaint seeks a personal judgment against no one, but asks primarily to have the title to this stock determined. The certificate evidencing the obligation of the association is in another jurisdiction, but the subject-matter of the action is the indebtedness of the association on the stock. The certificate of stock is no more than evidence of the debt of the association, and the situs of this debt is, not the place where this evidence of the debt happens to be held, but the residence of the debtor. "The general rule of law is well settled," said the court in Wyman v. Halstead, 109 U.S. 654, 3 S.Ct. 417, 27 L.Ed. 1068, "that for the purpose of founding administration all simple contract debts are assets at the domicil of the debtor; and that the locality of such a debt for this purpose is not affected by a bill of exchange or promissory note having been given for it, because the bill or note does not alter the nature of the debt, but is merely evidence of it, and, therefore, the debt is assets where the debtor lives, without regard to the place where the instrument is found or payable." See Von Hess v. Morton, 5 N.Y.S. 790; Catlin v. Wilcox, etc., Co., 123 Ind. 477, 8 L. R. A. 62, 18 Am. St. 338, 24 N.E. 250; Owen v. Miller, 10 Ohio St. 136, 75 Am. Dec. 502.
It is argued that the court had no jurisdiction over appellant nor over the subject-matter. Jurisdiction is the authority to hear and determine a cause. Appellant was served with summons at its place of business in Grand Rapids, Michigan. The suit is primarily against the Tri-State Building and Loan Association. But the complaint does not seek a personal judgment against any one. It asks the court to determine title to the building and loan stock. The complaint does not show appellee entitled to a judgment for the amount of the stock, even if the title to the stock is declared to be in the estate represented by appellee. It does ask that the association be prevented from paying the stock to any person other than appellee, but no money judgment is asked against the association. The cause of action arose where the association is located. It is to determine the ownership of a debt at the residence of the debtor. The jurisdiction of the court over the debtor and the cause of action was complete. The pleading asks for a judgment in rem. It may ask for more than the court had power to grant, but that does not necessarily make the complaint bad. Although appellant was a nonresident, the service of the summons, equivalent to publication, gave the court jurisdiction of the person so far as necessary to determine the rights of the litigants in this particular property which was within the jurisdiction of the court. Hellebush v. Blake, 119 Ind. 349, 21 N.E. 976; Quarl v. Abbett, 102 Ind. 233, 52...
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