Miller v. Bode, 80 Ind. App. 338

Miller v. Bode

80 Ind. App. 338 | Ind. Ct. App. | 1923

Dausman, J.

The procedure adopted in this matter is so irregular and confusing that it should not go unnoticed.

The proceeding is not a civil action, and therefore the provisions of the Code are not applicable. Brownlee, Admr., v. Hare (1878), 64 Ind. 311; Conger v. Babcock, Admr. (1882), 87 Ind. 497; Dohle v. Stultz, Admr. (1884), 92 Ind. 540.

The proper method of challenging the correctness of an administrator’s account, as exhibited in his report, is to file objections (sometimes inaptly called exceptions) thereto, specifically pointing out the alleged errors. §2913 Burns 1914, Acts 1883 p. 160; Christie, Exrs., v. Wade (1882), 87 Ind. 294; Conger v. Babcock, supra; Swift, Admr., v. Harley (1898), 20 Ind. App. 614, 49 N. E. 1069. Where the correctness of an administrator’s account is contested the court has inherent power to make a special finding of facts and to state conclusions of law thereon; and that is an excellent way of reserving questions to be presented on appeal. Swift v. Harley, supra; Taylor v. McGrew (1902), 29 Ind. App. 324, 64 N. E. 651.

*344*343Proof of heirship has no legitimate connection with the accuracy or inaccuracy of the administrator’s ac*344count. These two features are separate and distinct. One who desires to make proof of his heirship and to establish his title to a share in the surplus of the estate, pursuant to §§2912, 2928, 2931, Burns 1914, Acts 1883 p. 160, should not proceed by filing objections to the correctness of the account. The proper procedure for that purpose is to file his petition, averring therein his relation to the decedent and all other facts necessary to establish his right to participate in the fund for distribution. Sherwood, Admr., v. Thomasson (1890), 124 Ind. 541, 24 N. E. 334.

In the case at bar the controversy is In reality between Miller and the paternal grandparents. The statement in the final report that the administrator is informed and believes that Miller is not .entitled to any part of the fund, is merely an expression of his opinion and has no legal effect. The validity of Miller’s claim could be adjudicated only by the court. Where an administrator assumes to determine for himself the rights of those claiming to be heirs and therefore entitled to participate in the surplus for distribution, he does so at his peril. Glessner, Admr., v. Clark, Admr. (1895), 140 Ind. 427, 39 N. E. 544.

The first and second specifications in the documents filed by Miller are legitimate objections to the correctness of the account; but the third specification is not. It is apparent that these documents were intended to serve a double purpose, viz.: to present objections to the account and to serve as a foundation for proof of heirship. The combination is obviously improper; but it was not challenged in the trial court, and therefore we will consider the document in its dual aspect.

The appellant has abandoned his objections to the *345correctness of the administrator’s account, and the only question left for our.consideration is one of law, viz.: Is the maternal grandfather entitled to share in the estate ?

The child Esther, being of tender years, could not of her own volition change her domicile from Indiana to Michigan. McCleary v. Matson, Admr. (1850), 2 Ind. 79; Warren v. Hofer (1859), 13 Ind. 167. See Yale v. West Middle School District (1890), 59 Conn. 489, 22 Atl. 295, 13 L. R. A. 161. But the legal effect of the adoption of the child was to transfer her domicile to that of the adoptive parents. It follows that at the time of her death she was an inhabitant of the State of Michigan. Waldoborough v. Friendship (1895), 87 Me. 211, 32 Atl. 880; Washburn v. White (1885), 140 Mass. 568, 5 N. E. 813; Woodward v. Woodward (1889), 87 Tenn. 644, 11 S. W. 892. See §874 Burns 1914, §829 R. S. 1881.

Our statute provides that, where a decedent shall have died intestate, and at the time of his death was an inhabitant of another state, the surplus arising from the personal property shall be distributed according to the laws of that state; or, if administration of his estate be pending in the foreign state, the surplus thus arising may, under the order of the court, be paid over to the administrator appointed in the foreign state. §2927 Burns 1914, §2405 R. S. 1881.

Certain sections of the statutes of Michigan, relating to the subjects of descent and distribution, were adduced in evidence, viz.: §11799, subdivision 6 of §13913, §11795, Comp. Laws 1915. No other evidence of the law of that state is before us. From that evidence it appears that subdivision 3 of §11795, supra, is the final word in this controversy. It is there declared that:-. “If the intestate shall leave no issue, husband, widow, *346father, mother, brother, sister, nor child of brother or sister, his estate shall descend to his next of kin in equal degree * * e

This provision relates primarily to real property, but clause 6 of §13913, supra, makes it .applicable also to personal property in. the case at bar.

We conclude, therefore, that the residue of the estate of Esther Vermilya, deceased, should be distributed to the paternal grandfather Frederick Steinberg, the paternal grandmother Henrietta Steinberg, and the maternal grandfather William Miller, in equal shares— one-third thereof to each of them.

There is no controversy concerning any fact in this case and a new trial is not required.

The judgment is reversed, the cause remanded, and the trial court is directed to order the residue of the estate distributed in accordance with this opinion.