152 Ind. 186 | Ind. | 1899
Appellee, as the auditor of Daviess county, filed his petition in the lower court on October 4, 1897, whereby he sought to have the final settlement of the estate of Richard C. Graham, deceased, set aside and said estate reopened for further administration in order that certain taxes due from said estate to the State of Indiana, for state and county purposes, might be collected out of the assets of said estate. The petition was filed after the term of court at which the final settlement was approved and the action is apparently based upon section 2403 R. S. 1881, section 2558 Burns 1894, section 2403 Horner 1897, wherein it is provided that a final settlement may be set aside and reopened at any time within three years for illegality, fraud, or mistake in such settlement or in the proper proceedings thereof by any person interested in the estate who did not appear at such final settlement and was not summoned to attend the same. Appellant unsuccessfully demurred to the petition, on the grounds: (1) That the plaintiff had not the legal capacity to sue; (2) insufficiency of facts; (3) misjoinder of cause of action.
There was an answer in denial, and, upon the trial, the court made a special finding of facts and stated its conclusions of law thereon in favor of appellee, and rendered a judgment setting aside the final settlement made by appellant as the executrix of said estate, and ordered that the estate and the administration thereof be opened and reinstated'upon the docket of said court, and that the plaintiff recover his cost.
The errors assigned relate to the overruling of the demurrer to the petition, and to the exceptions to the court’s conclusions of law on its special finding of facts. The petition
The property omitted during each of the years in question is alleged to have consisted of money on hand and on deposit
Graham, it is averred, died testate at said county on July 29, 1895, leaving a liability for taxation due against his estate for State and county purposes to the amount of $3,000 on account of his failure to list and return all of his property for taxation as aforesaid charged, for which amount said estate, it is averred, is still indebted. On August 12, 1895, his last will and testament was duly probated in the Daviess Circuit Court, and appellant, his surviving widow, was duly appointed thereunder and qualified as the executrix of his said will and assumed the administration of his said estate. Under his will, she was given all of his real and personal property of every description held and owned by the testator at the time of his death, and the same was turned over, under the will, to appellant, and is now held by her.
It is further charged that appellant, as said executrix, never filed in said court, nor with the clerk thereof, any inventory whatever of the personal property left by said decedent or testator, and omitted and neglected to file such inventory for the fraudulent purpose of concealing the personal estate of her said husband, and for the fraudulent purpose of preventing the proper tax officials of said county, whose duty it was to assess omitted property, from discharging said duty.
Immediately after the expiration of one year from the time of her appointment by the court as executrix, to wit, on August 27, 1896, she filed her report in said court for final
Appellee, prior to June 1, 1897, had no knowledge or information that said decedent had omitted to list and return for taxation the property in question, and, it is averred, that the first information he received of that fact was on said 1st day' of June, 1897, and that thereupon he immediately proceeded to take the necessary steps to have appellant appear before him to be examined, under oath, touching the amount of money, notes, and bonds held by said testator at his death; but after she was served with the proper notice to appear, she failed and refused to do so or submit to such examination. It is further alleged that no administration of said estate is now pending in any court of this State and that appellant still resides in the said county of Daviess. The prayer is that the matters and things set forth in the-petition be inquired into and, if found to be true, that the final settlement of the estate be set aside, etc.
It is insisted by counsel for appellant that appellee, as county auditor, cannot maintain this action for the following reasons: (1) The facts do not disclose that he has such an interest in the estate as would authorize him, in contemplation of the statute upon which the action is founded, to file a petition for the purpose which he has; (2) that the facts alleged are not sufficient to warrant the court in awarding him any relief.-
We will consider these in their order. Section 8560 Burns
It was held in the latter case that the power to assess property is a summary one, and that in order to secure uniform and just taxation, which the law intends, and to protect the State’s revenue against a dishonest evasion of the law, and also to protect the honest taxpayer, it is necessary that tax laws be liberally interpreted in aid of the taxing power. The right of the county auditor and the other officials who in like manner are empowered and charged with the duty to see that omitted property is subjected to taxation, is a continuing one against each and every taxpayer, and it is not terminated with the' death of the latter, but proceedings in discharge of such duty can be maintained against his estate after his death,
Neither the taxpayer nor his estate after his death can claim any vested rights in the fruits of his fraud or omission to list and return all of his property liable to taxation, and the law, when properly invoked, will not permit either to profit thereby. Charged and empowered by the State with this duty, appellee, as county auditor, certainly cannot be considered, under the facts, in the eye of the law, as a stranger to the estate in question, and as one having no interest therein. Conceding that the court’s order of final settlement, as insisted by counsel for appellant, stood as a bar against'appellee taking any proceedings against Graham’s estate to secure the taxes in controversy, certainly then he was interested in having such final settlement set aside in order that he might proceed to discharge the duties imposed upon him by the law. Appellee was, at least, interested on behalf of the State, which he, under the law, represented as one of its instrumentalities in seeing that the taxes, which had accrued by reason of the omitted property, should be paid by the estate of the defaulting decedent.
The right which he seeks to maintain by this action, under the circumstances, is but incidental to the general power or right with which he is invested by the legislature in respect to the assessment of taxes on omitted property. The estate in question, it appears, had been finally settled and its assets turned over to appellant, leaving the matter in regard to the taxes now in controversy still virtually pending unsettled as a liability for which the estate should account. That appellee, as the instrument or agency of the State, is authorized by the statute to petition the court and secure the final settlement to be set aside upon a showing of sufficient facts, so far as it affects him adversely, in the discharge of his duties as such, we think there can be no doubt. The case of Bowen
Taxes which are assessed or imposed under the authority of the State for governmental purposes, either for the State direct or for some of its subdivisions, in a legal sense may be said to be the property of the State, and the latter is certainly interested in their collection. Therefore, if the order of final settlement in question is, as claimed by counsel for appellant, a bar to appellee in the discharge of the duties with which he is invested relative to the taxation of omitted property, it must follow that his right to institute and maintain this action, under the circumstances, cannot be successfully denied, and the steps which he has taken in the matter, in his capacity as county auditor, must, in legal contemplation, be deemed to be those of the State, and the action may be viewed as though it had been instituted in the name of the State upon the relation of appellee as county auditor, which is certainly a proper procedure.
' The contention of appellant’s counsel, that the petition ought to have alleged that the taxes in dispute had been filed as a claim against Graham’s estate prior to its final settlement, is without merit. The facts disclose that the decedent had for many years prior to his death failed to list and return for taxation a large amount of his property, and at his death it is charged he was liable for the payment of taxes, on account of his said default, in the sum of t$3,000 and over, which had accrued and were due for State, county, and township purposes.
Taxes are not such claims which the law of this State either requires or intends shall be filed for payment against a decedent’s estate. It is true that taxes, in the order prescribed by the statute for the payment of liabilities of a decedent’s estate, come within the fourth provision of such order of payment. Section 2378 E. S. 1881, section 2534 ■Burns 1894, section 2378 Horner 1897. The duty, how
It may be true that appellant, as insisted by her counsel, was, at the time she made her final report, ignorant of the acts of her testator in failing to list and return all his property for taxation, but this fact, under the circumstances, can not avail her to defeat the setting aside of the final report, or prevent the estate, which she represents, from being subjected to the payment of the taxes for which the decedent was justly liable. He, while in life, owed as one of the highest duties to the government, the duty to pay all taxes imposed upon his property liable to taxation. As a compensation for the discharge of this duty, the State afforded him protection to his life, liberty, and the due enjoyment of the property with which he had been blessed; and the discharge of this duty, if the decedent is shown to have omitted it, must rest upon his estate. With or without knowledge of the existence of this liability of her decedent, it existed all the same against the property of his estate until paid, unless barred by some provision of law. Beard v. Allen, 141 Ind. 243.
With this charge or liability against the estate, she, immediately after the expiration of the year allowed by law, procured it to be declared by the court as finally settled, and secured her discharge from further administration of her trust.
It has been held by this court that, under the present statutes relating to the settlement of a decedent’s estate, the fact that a claim was pending against an estate undisposed of at the time of the final settlement, consitutes such illegality as will, on the petition of the claimant, filed within the prescribed time, result in setting aside such final settlement. Dillman v. Barber, 114 Ind. 403.
A tax claim or charge, as we have seen, is not required to
It is further insisted that the petition is insufficient for the reason that it is not averred therein that appellee did not appear at the final settlement, nor was he personally summoned to attend the same. It is true that this court has held that in order to make a petition sufficient, under the statute, to set aside a final report after the term of court at which the same was approved, in a case where an ordinary individual or person is the petitioner, it must be shown by the averments of the pleading that the petitioner was not personally served with the process of the court'to attend the hearing of the final report, and if not so served, that he did not attend the hearing thereof as a party thereto. Dillman v. Barber, 114 Ind. 403; Williams v. Williams, 125 Ind. 156. But where, as in this case, the State, through the county auditor, may be said to be the petitioner, the rule asserted by this court under the provisions of section 2558, 2403, supra, is not applicable. The reasons for this assertion are obvious. The county auditor is a public officer invested,-under the law, with cer
It is a well settled rule and one of universal application that the State, in its sovereign capacity, can be sued only by its own permission, and then only in the manner, by which it has consented to be sued. The State of Indiana has not, under any statute, consented that an administrator or executor of an estate may bring it into court and thereby force it to become a litigant at the hearing of a final report in respect to a claim for taxes against such estate. It is evident, under the circumstances, we think,- that inasmuch as the county auditor was not authorized to appear at the final settlement made by appellant, and thereby bind the State, and as the latter, in the absence, of a statute granting such authority, could not be summoned to attend the hearing of the final
It follows from what we have said that the petition is sufficient, and the court therefore did not err in overruling the demurrer thereto. The facts set out in the special finding are substantially the same as those alleged in the petition, and the court’s conclusions of law thereon are correct, and the judgment below is therefore affirmed.