24 Ind. 92 | Ind. | 1865
Complaint by the appellees .against Darnall, administrator of the .estate of Mary Bell, deceased, and William Arnold, to set aside the allowance by the administrator of a claim filed against the estate by Arnold, as fraudulent; and also the report thereof to the court by the administrator. Issues of fact were formed and submitted to a jury, who found for the plaintiffs. Motion by the defendant in arrest of judgment overruled, and judgment on the finding of the jury. The defendants appealed.
The only question arising upon the record, on the motion in arrest, is, do the facts stated in the complaint constitute a valid cause of action ? We think they do. The complaint alleges that Mary Bell, by her last will and testament, bequeathed to the said Mary Ayres the sum of §250, to be paid to her after the payment of the just debts against the estate; that on the 24th of September, 1863, the administrator admitted a claim, filed against the estate by the said Arnold, of $314 58, and credited the amount thereof on a note due to the estate by said Arnold; that the administrator afterward reported the receipt of Arnold for the amount of said claim to the court, and was, by the court, allowed therefor; that the claim of Arnold was unjust and fraudulent, of which the administrator had notice, but that
The complaint prays that the allowance of the claim of Arnold by the administrator, and the allowance of the receipt therefor by the court, be set aside, and the plaintiffs be permitted to contest the same, and for general relief. The jury found for the plaintiffs, and that there was due to said Arnold the sum of 864 50, for funeral expenses paid by him, and for attention to deceased during her last illness. It will be observed that the complaint shows a sufficient interest in the plaintiffs, in the subject matter, to enable them to sue. It avers that the claim of Arnold was unjust and fraudulent, and that the administrator, knowing that fact, had fraudulently allowed it. It is urged that a copy of Mary Bed’s will should have been made a part of the complaint. We do not think so. The alleged fraudulent conduct of the administrator, and not the will, is the foundation of the suit. But it is insisted that the plaintiffs have mistaken their remedy; that they should have appealed from the order of the Common Pleas Court, allowing the receipt of Arnold as a credit in favor of the administrator. The plaintiffs were certainly without remedy in that mode of procedure. They were not parties to the settlement or allowance by the court; there was nothing in the record, in that respect, that would enable this court, on such an appeal, to grant them any relief. But it is also urged that the suit should have been against the administrator, on his bond, and not to set aside the allowance of the claim. Perhaps the facts stated are sufficient to render the administrator and his sureties liable on his bond, but we think that is not the only remedy; on the contrary, we are' of opinion that the remedy sought was not only a legitimate, but a very appropriate one. The motion in arrest was correctly
The judgment is affirmed, with costs.
