163 Ind. 395 | Ind. | 1904
Jonathan J. Moore, in h'is individual capacity, and Jonathan J. Moore, administrator of the estate of Willis E. Moore, deceased, are joined as co-appellants in this appeal. Robert J. Eerguson and others, who were ex-ceptors in the lower court, are the only persons who- have been made appellees. Neither Jonathan J. Moore, nor any other person as administrator of the estate of the said Willis E. Moore, deceased, has been made a party appellee.
The facts disclosed by the record, among others, may be said to be as follows: On February 16-, 1903, Jonathan J. Moore, as the administrator of the aforesaid estate, filed in the Boone Circuit Court what is denominated his “third current report.” Notice of the filing thereof, and that the same would be heard by the court at a time fixed, was given to the heirs and creditors of the decedent. The appellees herein, heirs and creditors of the decedent, appeared in the lower court and filed objections and exceptions to said report. The matters and things therein called in question by the exceptions came on for hearing before the court at the April term, 1903. Upon hearing and considering the report and exceptions thereto the court found that the first and second current reports of the administrator should be approved and confirmed, except as to certain credits claimed therein by the administrator, and ordered and adjudged accordingly.
The third current report was disapproved by the court as to certain items with which the administrator had charged himself, and the court ordered and adjudged that the charges therein against him be increased to the amount of $100. A credit of $/T12.52 in the report, which he claimed should be allowed to him personally as a partial payment for his services rendered in the administration of the estate, was wholly disapproved and rejected by the1 court. Other
Errors have been separately assigned by each of the appellants herein. As administrator, Moore, under a separate assignment, complains of the ruling of the court in denying the motion for a new trial, and in overruling the motion to modify the judgment. In his individual capacity he separately assigns that the court erred in overruling his motion to modify the judgment.
Appellees have filed a motion to dismiss the appeal upon the grounds, among others, (1) that no appeal bond has been filed by Moore as appellant in his individual capacity; (2) that he was not a party in his Said capacity to the judgment from which he seeks to appeal; (3) that the appeal is not prosecuted in the interests of the estate of the decedent, but is prosecuted solely for the individual interest and benefit of Moore.
It is manifest that the order or judgment from which this appeal has been taken is “a decision of the circuit court growing out of a matter connected with a decedent’s estate,” and the appeal is therefore based on §§2609, 2610 Bums 1901. Of course, where one prosecutes an appeal under the provisions of these sections in his representative capacity as administrator or executor, he is exempted by statute from filing an appeal bond. ' As this appeal, however, must be dismissed for another reason, we pass, without deciding, the contention of counsel for appellee that it should be dismissed because Moore, in taking an appeal in his own behalf, has failed to file the required bond.
It' is evident that the judgment or order of the court below was in effect wholly unfavorable to and against the
It is certainly clear that by the order of the court the interests of the estate in effect were promoted. Especially is this true in regard to the $600 allowed to the administrator as compensation for his services, which amount, as shown, the court required him to turn over to the estate to be applied in payment of the claim or obligation in question. It appears that he is wholly insolvent, and that the estate will be compelled to pay out of its assets the claim upon which he is the principal debtor. By the order of the court the estate virtually secured the benefit of $600 in money, and to this -amount, at least, the assets thereof for the payment of claims may be said to have been increased. The judgment or order of the court, considered either in part or as a whole, was certainly, under the circumstances, in the interest of the estate, and the latter, as previously said, was thereby promoted.
The estate certainly, under the circumstances, can have no grounds of complaint, and no reason for appealing from
Under the facts the respective interests are wholly adverse to each other. Therefore, under the circumstances, the estate, by its administrator, should not be made to occupy' the position of appellant, but should have been made an appellee. It is true that §2546 Burns 1901 permits any person interested in the administration of the assets of an estate to except to and contest the correctness of the accounts of an administrator or executor, still such exceptor does not stand for nor represent the estate. The administrator of the decedent’s estate herein not having been made an appellee in this appeal, the motion to dismiss must be ruled by the decisions of Abshire v. Williamson (1898), 149 Ind. 248, and cases there cited, Kreuter v. English Lake Land Co. (1902), 159 Ind. 372, and cases there cited, Haymaker v. Schneck (1903), 160 Ind. 443, and Kuhn v. American Mut. Life Ins. Co. (1903), 160 Ind. 356. In the case last cited the court said: “It is settled law in this State that, unless all parties adverse to appellant in the court below are made appellees in this court, the case can not be determined on its merits.”
By reason of the failure to make the administrator of the estate of Willis E. Moore, deceased, a party appellee