Wysong v. Nealis

• Decision Date: 20 September 1895
• Docket Number: 1,649
• Citation: 41 N.E. 388,13 Ind.App. 165
• Parties: WYSONG, EXECUTOR, ETC., v. NEALIS ET AL
• Court: Indiana Appellate Court

41 N.E. 388

13 Ind.App. 165

WYSONG, EXECUTOR, ETC., v. NEALIS ET AL

No. 1,649

Court of Appeals of Indiana

September 20, 1895

From the Boone Circuit Court.

Judgment reversed, with instructions to sustain the motion for a venire de novo.

T. J Terhune and H. P. New, for appellant.

S. R Artman, J. L. Lewis and Abbott & Ratcliff, for appellees.

LOTZJ. ROSS, J., concurs in the result, but not in that part of the opinion holding that a special finding or special verdict should contain anything except the ultimate facts.

OPINION

LOTZ, J.

The appellant, as the executor of the will of James Nealis, deceased, filed his final report as such executor.The appellees, as the legatees and heirs at law of James Nealis, appeared and filed many exceptions to various items or credits claimed by him.By voucher No. 127the executor claimed a credit of $ 533.73 paid to the clerk of the Boone Circuit Court to satisfy a judgment and decree in a cause wherein Minerva J. Shanefelter was plaintiff and William H. and Ella Stephenson were defendants.By voucher No. 128he claimed a credit of $ 1,922.74 for his services as such executor; and by voucher No. 129he claimed a credit of $ 200.00 paid his attorneys.

There does not seem to be any formal exception to voucher No. 127, but perhaps under the general supervisory powers given to the trial court in the settlement of estates of deceased persons it was its duty to ascertain the correctness of this item.

The exception to the item represented by voucher No. 128 assigned as a cause that the claim for services was excessive.The same exception was made to voucher No. 129.

The court, at the request of the parties, made a special finding of the facts and stated conclusions of law.

So much of the special finding as is necessary to determine this controversy is as follows:

"That in said final report, filed on the 31st day of January, 1894, said executor asked credit, as shown by vouchers Nos. 98 to 131, inclusive, in the sum of $ 6,101.91, leaving a balance of $ 418.35, which the said executor has paid to the clerk of the Boone Circuit Court for the benefit of the heirs and legatees herein, which the court finds to be correct, except vouchers 127, 128 and 129.The court finds that said voucher 127, for $ 533.73, was paid to satisfy a judgment and decree of the Boone Circuit Court wherein Minerva J. Shanefelter was plaintiff and William H. and Ella Stephenson were defendants; that the estate of James Nealis was in no sense bound or liable for said amount to the said Minerva J. Shanefelter or any one else, and that said sum was wrongfully paid out of said estate by said executor; that by the exercise of ordinary diligence said executor could have ascertained that the estate of James Nealis was not liable for any amount in said litigation.

"The court further finds that voucher 128 in said final report for $ 1,922.74, the same being the personal services of the said executor, is in excess of the value of said executor's services in the sum of $ 422.74; that the value of the said executor's services in connection with said estate is $ 1,500.00.

"The court further finds voucher No. 129 in said final report for $ 200.00, paid to Terhune & New, attorneys at law, for legal services, is incorrect in this, that $ 100.00 of said amount was paid in the case of Minerva J. Shanefelter v. William H. and Ella Stephenson, in which said estate was not a party nor liable for any amount growing out of said cause, and by the exercise of ordinary diligence on the part of said executorhe could have discovered the same.

That all the acts of said administrator in the management of said estate, including all compromises, claims, both in favor of and against said estate, were correct and for the best interest of said estate, and all exceptions and objections to said reports, inventories and sale bills are without foundation except as to vouchers 127, 128 and 129 in said final report."

The court stated its conclusions of law as follows:

"On the foregoing facts the court concludes the law to be that said executor is liable to said estate in the sum of $ 533.73 wrongfully paid to the clerk of the Boone Circuit Court for the benefit of Minerva J. Shanefelter, as shown by voucher 127 of said executor's final report.

"That said executor is liable to said estate in the sum of $ 422.74, being the amount embraced in voucher 128 of said final report in excess of the value of his services as executor of said estate.

"That said executor is liable to said estate for the sum of $ 100.00 of the amounts embraced in voucher 129 of said final report, said amount being paid by said executor to Terhune & New as attorneys' fees in a case wherein said estate was not a party to said suit and not liable; making the total amount for which said executor is liable to said estate $ 1,056.47, in addition to the amount $ 418.35 now in the hands of the clerk of the Boone Circuit Court."

The appellant excepted to the conclusions of law, and has assigned as error in this court that the conclusions are erroneous.

The claims of the executor in his final report for credits against the estate are in the nature of separate complaints or allowances, and the exceptions to them or any one of them placed the burden on him, and he was required to establish the correctness of his report in respect to such matters as were embraced in the exceptions filed.Hamlyn v. Nesbit, Admr.,37 Ind. 284.He is regarded as the plaintiff and the exceptors as the defendants.Brownlee, Admr., v. Hare,64 Ind. 311.

The issue joined on the claims for credits and the exceptions thereto should be tried and determined, and the law applied, by the same rules that govern in the ordinary civil action arising out of claims filed against estates of deceased persons.The office of a special finding or verdict is to determine such facts embraced within the issues as give rise to the legal conclusions.The facts found must be sufficient to set in operation the law and to support the judgment pronounced.These facts are usually the ultimate facts, the proof as contra-distinguished from the evidence.Sometimes an ultimate fact contained in the verdict is a conclusion or inference from other facts, in which case the verdict should also find and set out the facts which give rise to the inference or conclusion.Barr, Admr., v. Chicago, etc., R. R. Co.,10 Ind.App. 433, 37 N.E. 814.

If the verdict or finding contain irrelevant and foreign matter, such matter may be disregarded in stating the conclusions of law.If, after eliminating all such matter, the facts remaining are sufficient to support the conclusions of law, the verdict or finding will not be deemed insufficient to support the judgment by reason of such foreign matter.A conclusion of law cast among the facts or a fact cast among the conclusions of law cannot be considered for any purpose.Johnson v. Bucklen,9 Ind.App. 154, 36 N.E. 176;Stalcup v. Dixon,136 Ind. 9, 35 N.E. 987.

It is also well settled that when the verdict or finding is silent upon a material fact or issue that such silence is equivalent to a finding against the party having the burden of such fact or issue.Graham v. State,ex rel., 66 Ind. 386.The appellant was the plaintiff, and before he was entitled to a judgment he was required to produce a state of facts which would support the legal conclusions of his right to recover, or to the credits claimed.The fact that the court may have stated some legal conclusions not warranted by the findings will not avail the appellant if the legal conclusions correctly drawn support the judgment.If a finding will not support a judgment for the plaintiff, and the defendant has asked no affirmative relief under any issue, then the finding will support a judgment in favor of the defendant.In all such cases, if the verdict or finding will not support a judgment in favor of the plaintiff, it will support one in favor of the defendant.Tested by these rules, there was no available error committed by the court in stating the conclusions of law in view of the issues joined.

The appellant made a motion for a venire de novo, assigning as reasons therefor: (1) That the special findings do not cover and embrace all the issues.(2) That the findings are vague, uncertain and indefinite, and state conclusions of law instead of the facts proved by the evidence.(3) That the findings do not find or state the facts in respect to the claim paid to the clerk of the Boone Circuit Court for the benefit of Minerva J. Shanefelter, as shown by voucher 127 of the executor's final report, but...