123 Ind. 552 | Ind. | 1890
This is an action brought by the appellant, Thomas E. Bentley, administrator of the estate of Selah Brown, deceased, to set aside a judgment for the allowance of a claim in favor of the appellee, rendered when the appellee was administrator of said estate.
The complaint alleges that Selah Brown departed this life, intestate, at the county of Hancock, in the year 1885, leaving surviving her, as her sole and only children, grandchildren, and heirs, Henry Brown, Eli Brown, John Brown, Rebecca Jessup, Mary Ruce, James Brown, Jacob E. Brown, Sarah Brown, Martha Brown, and the defendant, Oliver Brown; that after the death of said Selah Brown the appellee, Oliver Brown, was appointed and qualified as administrator of the said decedent’s estate, and entered upon the duties of said trust; that afterwards, on the 26th day of January, 1886, said Oliver Brown, the appellee, filed in the office of the clerk of said court his certain claim against said estate for the sum of $2,100 for board, care, and attention rendered and furnished said decedent in her lifetime, and for money loaned her; that afterwards such further proceedings were had on said claim as that the same was duly transferred to the issue docket of said court, and stood for trial on the docket of said court; that thereupon said appellee, Oliver Brown, being the administrator of said estate as aforesaid,
The appellee demurred to the complaint for want of facts, which was overruled, and exceptions reserved by appellee.
Issue was joined on the complaint by answer in denial, and there was a trial, resulting in favor of appellee, and appellant filed a motion for a new trial, which was overruled, and exceptions taken.
The appellant assigns as error the overruling of the motion for a new trial, and the appellee assigns as cross-error the overruling of his demurrer to the complaint.
Upon the trial of the cause the appellant introduced and read in evidence the order-book entries and record of the
After the issues were joined the record shows an appearance of the appellee herein, the plaintiff in the cause, and that Martin appeared for the estate, and by agreement of the parties the claim was allowed for $500, and an order and judgment of allowance entered for that amount. The record is complete upon the face of it, and does not show that Martin ever withdrew his appearance for the estate, but, on the contrary, shows his appearance and agreement for the allowance of $500 by the court.
After the introduction of this record in evidence the appellant sought to introduce evidence to establish the fact that the estate was not indebted to the appellee, offering in evidence a letter written prior to the rendition of the judgment for that purpose; he also offered to prove by William H. Martin, the attorney appointed to defend and represent the estate in the original case for the allowance of the claim,that he withdrew from the case, and stated he had no authority from any of the parties or heirs to compromise. This proof was properly and formally offered and objected to, and excluded, and exceptions were reserved, so that the question is presented as to its competency.
Other evidence was introduced and excluded, but the ruling of the court in excluding it presents the same question as that above stated, so we need not set out the various other items of evidence offered and excluded.
The record of the judgment introduced in evidence contradicts the allegation of the complaint. The complaint shows that Martin, who was appointed by the court to represent the interest of the estate, by leave of court withdrew
The administrator of the estate of Selah Brown, appointed by the Hancock Circuit Court, and representing her estate, brings this action to set aside the judgment. Martin, an attorney, who was appointed by the same court to represent said estate, appeared in said cause and represented said estate in the rendition of the judgment of allowance.
The statute provides for the filing of claims due executors and administrators against estates as other claims are filed, and by section 389, Elliott’s Supp., it is provided that “ Whenever a claim in favor of an executor or administrator against the estate he represents, which accrued before the death of such decedent, shall be filed against said estate, with the affidavit of the claimant attached, thirty days before the commencement of the term of said court during which the claim is to be presented for allowance, the judge of said court shall represent said estate, and shall examine into the nature of said claim, and if the same be by said court deemed just and right, said court shall allow said claim and order the same paid out of said estate, as other claims of the same class, and said court may, in its discretion, examine under oath such executor or administrator, or any other person, touching said claim, and if such
Section 388, Elliott’s Supp.,provides that “ The allowance of a claim, as provided for in this act, shall, as between the claimant and the executor or administrator, be operative, and as an adjudication of the validity and amount of the claim.”
It is evident that it was intended by this act that the allowance of a claim, according to the provisions of the act, should put an end to all litigation as to the validity and amount of the claim so far as the administrator of the estate \yas concerned, and it provides equally as stringent a process for the allowance of claims in favor of an administrator as claims in favor of third parties, and that the same rules shall apply to one as to the other. When claims in favor of an executor or administrator are filed, it makes the- court the representative of the estate and gives it power to investigate and examine witnesses if it deems proper to do so, also the power to appoint an attorney of the court to make an active defence to the claim. In this case the record shows that the court exercised the power vested in it, and appointed an attorney to represent the interests of the estate, and after an investigation by the attorney appointed, and the joining of issues, the claimant appeared by his attorneys, and the attorney appointed by the court appeared for the estate and reported to the court an amount agreed upon to be allowed in settlement, and the court approved of such adjustment and allowed the claim to the amount agreed upon. This adjustment and allowance by the court bind the representative of the estate, and are an adjudication as to the validity and amount of the claim in favor of such administrator, and is equally as binding upon such administrator and subsequent administrators of such estate as would
Parol evidence was not proper to contradict or change the record, and the court properly excluded the evidence offered by the appellant. Smith v. Hess, 91 Ind. 424; Reid v. Mitchell, 93 Ind. 469.
Whait was sought to be done in this case was to attack the judgment and contradict the record by parol evidence and set it aside and retry the matters litigated and settled by the former adjudication.
The complaint is not good for the purpose of setting aside such a judgment as the one introduced in evidence for fraud. If sufficient to withstand a demurrer, it is because it alleges the withdrawal of the appearance by Martin, and the taking of a judgment without any person representing the estate, and practicing a fraud upon the court. It alleges that Martin had knowledge of the proposed compromise and its terms, and that by leave of court he withdrew his appearance, and the record introduced contradicts the allegations as to his withdrawal, and affirmatively shows that he appeared and agreed to the compromise, and the court approved it and rendered a judgment of allowance.
As the judgment must be affirmed, it is unnecessary to consider the question as to the validity of the complaint presented by the cross-error assigned.
Judgment affirmed, with costs.