73 Ind. 573 | Ind. | 1881
— This was an action by Sarah A. Johnson;., formerly Sarah A. Williams., and her husband, Elbert John
The second paragraph of the complaint averred that on the 19th day of August, 1858, the defendant was duly appointed and beeame.guardian of the person and estate of the plaintiff Sarah, then Sarah A. Williams, and as such guar•dian came into the possession of her estate; that on the 10th day of May, 1869, the defendant reported to the court of common pleas of Spencer county, that the said Sarah had arrived at full age, and that he was indebted to her, as her said guardian, in the sum of $3,132.17, with which sum he was then and there, as such guardian, charged by said court; that on the 13th day of May, 1870, the defend-ant filed with the clerk of the said court of common pleas
Error is assigned upon' the overruling of the demuiTer to the second paragraph of the complaint. In the argument upon the sufficiency of this paragraph, frequent reference is made to the exhibits accompanying the complaint, but as these exhibits were of a character which do not become a part of the complaint by being filed with it, the demurrer raised no question upon them, or upon the validity of the proceedings of which they formed a part. Parsons v. Milford, 67 Ind. 489. Consequently, in determining whether or not the paragraph of complaint in question was sufficient, we must look only to the averments contained within the paragraph itself, unaided by the exhibits which Were filed in connection with it. The obvious inference from the facts averred in the paragraph is, that the plaintiff Sarah was of full age*
The right to have the final settlement of an executor, ad- • ministrator or guardian set aside, in certain cases, is conferred by statute, and can only be exercised within a limited time. When, therefore, the complaint shows that the action to have such a settlement set aside has not been commenced in time, it is bad upon demurrer. Angell Limitations, sec. 294; Hanna v. The Jeffersonville, etc., R. R. Co., 32 Ind. 113; Brown’s Adm’r v. Lucas, 18 Ind. 286 ; Potter v. Smith, 36 Ind. 231.
An action to sot aside the final settlement of an executor- or administrator must be commenced within three years, and where the party aggrieved is under disability when the settlement is made, then within three years after the disability is removed. 2 R. S. 1876, p. 537, sec. 116.
Settlements made by a guardian have been held to fall within the. provisions of the act concerning the settlement of decedents’ estates, and hence the same limitation applies to an action to set aside the final settlement of a guardian, as does to cases of final settlement by executors and administrators. The State, ex rel., v. Hughes, 15 Ind. 104; Holland v. The State, ex rel., 48 Ind. 391.
So long as the final settlement of an executor, administrator or guardian, remains in force, it is to be considered an adjudication of the matters lawfully embraced within it, and as a bar to an action seeking to reopen questions settled by it. Parsons v. Milford, supra.
The second paragraph of the complaint failed to make-out a case entitling the plaintiffs to relief against the de
As the judgment must be reversed for want of a sufficient complaint, we néed not consider other questions discussed by counsel.
The judgment is reversed, with costs, and the cause remanded for further proceedings.