29 Ind. App. 376 | Ind. Ct. App. | 1902
Action by appellant. Demurrers to complaint sustained. Failing to plead further, judgment for costs was rendered from which the appeal is taken.
The sole question is whether the complaint states facts sufficient to constitute a cause of action. Its substantial averments are that appellant is a corporation; that appellee Hawley was, on June 3, 1898, appointed administrator of the estate of David C. Stewart, deceased; that he then qualified and entered upon the duties of said trust; that on December 20, 1897, appellant obtained a judgment against Stewart, then in life, for $87.75 and costs, which judgment was in full force and unpaid at the time of Stewart’s death, and was a valid charge and lien against the assets of his estate; that said administrator took possession of said assets; that no part of said sum evidenced by said judgment was paid by him; that the full amount thereof is due and unpaid; that said administrator filed inventories showing assets to the amount of $2,175.63; that he learned tb,at said estate would be insolvent after the payment of the statutory allowance of $500 to the widow Yeda Stewart; that notwithstanding such knowledge he failed to settle the estate as insolvent, but proceeded to settle it as a solvent estate without giving any notice that it would be settled as insolvent; that within thirty days after his appointment said administrator was informed of appellant’s judgment,
Section 2558 Burns 1901 provides for the setting aside of the final settlement of an estate for illegality, fraud, or mistake within, three years from the date of such settlement. This action was brought within the time named, and in the same court approving the settlement. The facts set out in the complaint are sufficient to establish both illegality and fraud. The purpose of the law is to secure the
Judgment reversed, cause remanded, with instruction to overrule demurrers to tbe complaint, and for further proceedings not inconsistent herewith.