50 Ind. App. 166 | Ind. Ct. App. | 1911
Lead Opinion
— This-appeal is from a judgment of the court below, rendered in the matter of a petition under oath filed by appellants, asking the revocation of letters of administration issued by the court to appellee, accompanied by a sworn application of appellants to be themselves appointed to administer on the estate involved.
The transcript of the record discloses that on September 20,1910, appellee filed in the Wells Circuit Court an application for letters of administration on the estate of David F. Curry, deceased. Said application was in the usual and ordinary form under oath, and showed that said decedent died on September 16, 1910, intestate, leaving a personal estate of $12,000. Said application was accompanied by bond, and said letters were issued and confirmed by the court
Said petition, application, and record entry showing the filing of the same, are set out in the transcript, and we here set out said record entry and said petition.
“In Re Estate of David Franklin Curry, deceased.
Comes now Charles H. Plessinger, administrator in this behalf, by his attorneys, and come also William A. Curry and Mary S. Wiecking, by their attorneys and file their petition to revoke the letters of administration issued herein to Charles H. Plessinger, which petition is in the words and figures following, to wit:
State of Indiana, „„ County of Wells,
Wells Circuit Court,
Sept, term, 1910.
Petition by William A. Curry & Mary S. Wiecking to revoke letters hereto granted.
In Re the estate of David F. Curry, deceased.
To the Honorable Charles E. Sturgis, Judge of the Wells Circuit Court:
The undersigned, William A. Curry and Mary S. Wiecking, being each duly sworn, respectfully show to the court that David F. Curry, deceased, departed this life on the 16th day of September, 1910, intestate, as they believe, and leaving a personal estate in Wells county, Indiana, of the probable value of $10,000.00; that said decedent was at the time of his death a resident of said Wells county, Indiana; that said David F. Curry left no parents, wife or children surviving him; that affiant William A. Curry is the son of a deceased brother of the deceased father of said David F. Curry, and that the affiant, Mary S. Wiecking, is the daughter of deceased brother of said David F. Curry; that both of the affiants are related in the degree of cousin to said decedent; that neither of them has at any time relinquished his right to administer upon the estate of*169 said decedent and that each of them is an heir at law- of said decedent; that on the 20th day of September, 1910, without any notice to either of these affiants and without their knowledge, one Charles H. Plessinger filed in the office of the clerk of the Wells Circuit Court, and caused to be presented to the Judge of the Wells Circuit Court an application for letters of administration upon the estate of said decedent, and filed therewith his bond in the sum of $40,000.00, and that thereupon letters of administration were' issued to Charles H. Plessinger and said letters so issued were confirmed by the Judge of the Wells circuit court, and that affiants are informed that said Charles H. Plessinger was sworn to faithfully discharge the duties of his trust as such administrator. Affiants further show that said Charles H. Plessinger was not in any manner related to the decedent within any degree-, is not- an heir of said decedent, is not a legatee and is in no wise interested in the estate of said decedent, but is an entire stranger thereto. Affiants further say and show that they are desirous of taking upon themselves jointly the administration of the estate of said decedent and have prepared and herewith present their application for letters of administration upon said estate together with a good and sufficient bond.
Affiants therefore ask the court to set aside and revoke said letters heretofore granted and issued to said Charles H. Plessinger, and to grant letters of administration to these affiants and to order that the same be issued and to confirm such letters of administration upon the estate of said David F. Curry, deceased, to these affiants.
William A. Curry.
Mary S. Wieeking.
Subscribed and sworn to before me, this 21st day of September, 1910.
W. H. Eichhorn,
Notary Public.
=» # # *
The said William A. Curry and Mary S. Wieeking file their application for letters of administration in this: behalf, together with the written consent of Ernst Wieeking, husband of said Mary S. Wieeking, to her appointment as such administratrix, and their bond as such administrators, which application, consent and bond are in these words, to wit.”
Then follows a copy of the writing signed by Ernest Wiecking, husband of Mary S., consenting to such appointment, and also a bond in the sum of $20,000, signed by two sureties.
The transcript discloses no demurrer or answer of any kind filed to said petition and application, and no further pleadings or proceedings had in said matter, except the following:
“In Re estate of David Franklin Curry, deceased.
Comes now Charles H. Plessinger, administrator in this behalf, and come also William A. Curry and Mary S. Wiecking, by counsel, and in person, and the court being fully advised in the premises, overrules the motion of the said William A. Curry and Mary S. Wiecking to revoke the letters of administration issued in this behalf to Charles H. Plessinger, to which ruling the said William A. Curry and Mary S. Wiecking separately except. The application of the said William A. Curry and Mary S. Wiecking for letters of administration of the estate of David Franklin Curry, deceased, is hereby overruled by the court, and such letters of administration are denied, to which ruling the said applicants separately except. It is therefore ordered, adjudged and decreed by the court that the motion Of the said William A. Curry and Mary S. Wiecking to' revoke the letters of administration issued herein to Charles H. Plessinger be, and the same hereby is, overruled, and that the application for letters of administration of the estate of David Franklin Curry, deceased, filed herein by the said William A. Curry and Mary S. Wiecking be, and the same hereby is refused and the said letters of administration are hereby denied; and that the costs accrued in this behalf occasioned by said motion to revoke letters and said application for letters of administration, be, and the*171 same hereby are, taxed against the said William A. Curry and Mary S. Wiecking. The said William A. Curry and Mary S. Wiecking now give notice that the action of the court in overruling their motion to revoke letters and in refusing their application for letters of administration of the estate of David Franklin Curry, deceased, is reserved as a question of law, under section 669, Burns’ R. S. 1908 [§630 R. S. 1881], and request the court to direct the bill of exceptions tO' be so made that it will distinctly and briefly present the questions so reserved to the court on appeal. ’ ’
A motion for a new trial was .filed and overruled, and exceptions saved. A bill of exceptions was filed in the case which is set out in the transcript, and contains the record entries, showing the application and appointment of appellee, and the confirmation thereof, and his qualification thereunder, and the petition and application of appellants, and the court’s refusal to revoke appellee’s letters, and refusal to appoint appellants, and other record entries and the judgment above set out, and contains the following further statement : ‘ ‘ That said Charles H. Plessinger, on said 21st day of September, 1910, duly appeared in said court to said application to revoke letters and to said petition and application of said William A. Curry and Mary S. Wiecking, for letters of administration on said estate. That thereupon said application to revoke and the petition of said William A. Curry and Mary S. Wiecking to be appointed administrator of said estate was continued, by agreement of said Charles H. Plessinger and said William A. Curry and Mary S. Wiecking from day to day in said court, until October 7th, 1910, the same being the 29th juridical day of said term of said court. The Wells Circuit Court then and there fixed the 7th day of October, 1910, by agreement of all the parties, the same being the 29th juridical day of said term, for the hearing of said petition to revoke said letters of administration and the petition of William A. Curry and Mary S. Wiecking to be appointed administrator and administratrix of said estate. And be it further remembered, That on the 7th day of
This bill of exceptions then shows the ruling of the court made on said petition and application on October 11, 1910, and the judgment thereon substantially as above set out.
The errors assigned are as follows:
(1) The court erred in overruling appellants’ petition to revoke the letters of administration issued to Charles H. Plessinger as administrator of the estate of David P. Curry.
(2) The court erred in overruling appellants’ petition for letters of administration on the estate of David P. Curry, deceased.
(3) The court erred in refusing to revoke the letters issued to Charles H. Plessinger, administrator of the estate of David P. Curry, deceased.
(4) The court erred in refusing to grant letters of administration on the estate of David P. Curry, deceased, to William A. Curry and Mary S. Wiecking.
(5) The court erred in overruling appellants’ motion for a new trial.
It is earnestly insisted by appellee that the questions presented by the assigned errors cannot be considered by this court, because the special bill of exceptions saving the questions so relied on as errors expressly shows that appellants
We are unable to find in any previous decision of this court or the Supreme Court a case where the question has been presented in the manner it is here presented. We are inclined to agree with the position taken by appellee, to the extent of holding that inasmuch as there is no evidence in the record, this court has nothing on which to predicate an opinion on the question of whether the court below erred in refusing to revoke appellee’s letters, or in refusing to grant letters to appellants. Even if it should be conceded, as appellants contend, that their sworn petition and application, in the absence of any answer to the same, should be taken as confessed, a question which we deem unnecessary to decide, in view of the conclusion we have reached in the case, appellants would not be greatly helped by such concession.
Appellants’ petition and application are joint. Their assignment of error is joint. The questions presented by the first, second, third and fourth errors assigned therefore challenge the ruling of the court in refusing to revoke the letters issued to appellee, and appoint said applicants jointly to administer on said estate.
The fifth error assigned calls in question the ruling of the
The matter of the appointment of an administrator of the estate of a deceased person is controlled by statute.
Under this statute, and the express holdings of this court
On account of the error of the lower court in overruling said motion,-the judgment of said court is reversed, with instructions to such court to grant a new trial, and for further proceedings not inconsistent with this opinion.
Rehearing
On Petition for Rehearing.
— Appellee urges that a rehearing should be granted in this case, and as grounds therefor insists (1) that the appeal was taken under §669 Bums 1908, §630 E. S. 1881, presenting a reserved question of law, and that under such an appeal a consideration of the evidence is not proper; (2) that the appellant waived the point on which the decision was reversed; (3) that the opinion is wrong even on the merits of the question presented by the appeal.
The mere fact that, appellants had notified the court of their intention to perfect an appeal, presenting a reserved question of law, did not prevent them from afterwards perfecting their appeal under the general provisions of the practice act, which they did in this case. This is -expressly decided by this court in the case of McKendry v. Sinker, Davis & Co. (1891), 1 Ind. App. 263, 27 N. E. 506.
We see no reason for changing the original opinion on the
Petition for rehearing overruled.
Note. — Reported in 96 N. E. 190, 97 N. E. 124. See, also, under (1, 3) 18 Cyc. 114; (2) 3 Cyc. 164; (4, 5) 18 Cyc. 124; (6) 18 Cyc. 86; (7) 18 Cyc. 151; (8) 18 Cyc. 124, 168; (10) 3 Cyc. 455. As to the grounds effective for the removal of an executor or administrator, see 138 Am. St. 525.