43 Ind. App. 387 | Ind. Ct. App. | 1908
Lead Opinion
On September 26, 1896, appellant Jonathan J.Moore was duly appointed by the Boone Circuit Court administrator of the estate of Willis Moore, deceased. The relators filed and were allowed claims against said estate amounting in the aggregate to $2,161.30, at the time this cause was tried in the court below. All of said claims were so allowed prior to February 16, 1898. The appellant, as such administrator, duly procured three separate orders for the sale of real estate, executing bonds as required by law upon the court’s granting each order; the appellant American Surety Company of New York becoming surety on the first two bonds, and appellant American Trust Company of Lebanon, Indiana, becoming' surety on the bond given in procuring the last order. Said last-mentioned appellant afterwards filing its petition to be released from such bond,
This action was brought on the relation of the creditors of the estate upon the several bonds given by appellant Moore, as such administrator, on procuring said orders to sell said real estate. The complaint is in four paragraphs, one being based on the bond given on procuring the first order; another on the bond given on procuring the second order; another on the bond given on procuring the third order and the substituted bond given on the release of the surety in the original bond; the fourth being a combination of all. Each paragraph of the complaint assigns numerous breaches of the bond sued on. Appellants Moore and American Surety Company of New York each filed motions to require the complaint and the breaches of the bond assigned to be made more specific, which motions were overruled and exceptions reserved. Each of the appellants filed separate demurrers to each paragraph of the complaint, and to each breach of the bond assigned in each paragraph of the complaint, which demurrers were overruled. Answers were filed and replies thereto, the cause submitted to the court for trial, a special finding of facts made, and conclusions of law stated thereon, to which each appellant severally reserved exceptions. Appellants’ several motions for a venire de novo were overruled and exceptions reserved, and appel
The only parties assigning errors here are appellants Moore and American Surety Company of New York. They assign as errors: (1) The overruling of their motion to require the complaint to be made more specific; (2) all the rulings of the court upon the several demurrers to the various paragraphs of the complaint, and the several assigned breaches of the bonds; (3) the conclusions of law stated by the court; (4) the overruling of their several motions for a venire de novo, and their motions for a new trial.
The pleadings in this case are complicated and very voluminous, and contain a vast amount of surplusage. The special findings are voluminous, and to take up the various questions that are raised in the briefs of counsel and pass upon each of them would be impracticable. The first and second paragraphs of the complaint aver with sufficient certainty and clearness the due appointment of appellant Moore as administrator of the estate of Willis Moore, deceased; the interest of the relators as creditors; the due execution of the bonds, and the proceedings by said administrator to sell the real estate; the orders for the sale of the real estate, and its sale under such orders; the receipt by the administrator of the proceeds of the sale; the fact that the personal assets of the estate were exhausted in paying the debts and liabilities of the estate, leaving the creel
Among the breaches of the bond assigned in each paragraph is one averring the failure of appellant Moore to apply the money arising from the sale of the real estate to the payment of the judgments and claims of the relators. Another avers the failure of said appellant to comply with the order of the court requiring him to pay said moneys into court for their use. The special findings made by the court, while they contain a vast amount of mere evidentiary facts, find all the facts with reference to the appointment of the administrator, the orders of sale of real estate, the filing of the bonds, and the sale of the land and receipt of the purchase money as averred in the complaint, and that on May 25, 1903, the entire estate of appellant Moore’s intestate had been reduced to cash; that no claims were pending for allowance against said estate; that the court then ordered the administrator to pay the costs of administration, and within ten days file his final settlement of said estate, and pay the balance remaining in his hands for distribution to the clerk of the court, to be applied to the payment of claims filed and allowed against the estate, and for distribution among the heirs entitled thereto; that the relators in this
We think that it is sufficiently shown by the findings that this fund, on hand when the order of the court was made upon the administrator to pay the same into court, was never paid to the creditors of the estate upon their claims, into court, nor to the appellant Moore’s successor in said trust, and that the administrator sold real estate under the third order granted him, upon which he realized $575, for which there is no liability against the appellant American Surety Company of New York. There is a finding that $141.58 of the funds in the hands of the administrator arose from the sale of land under the last order of sale made. There is no question here made regarding either the misjoinder of parties, or of causes of action.
In the case of Yost v. State, ex rel. (1881), 80 Ind. 350, the court said in reference to the liabilities of the sureties on the general bond of a guardian and his bond given upon the procuring of an order to sell real estate: “If the evidence of accounting fails to show of which fund the guardian was in default, the condition of each bond is broken to the extent of the defalcation, and the plaintiff was entitled to recover the whole sum of whichever set of bondsmen she should choose to sue.” In this case we think the court was fully justified in finding that the liabilities of the estate paid out by the administrator were paid by him out of the fund derived from the personal estate, and not from that which was received by him from the real estate, and that the sureties on the real estate bonds are entitled to no credit on account of such payments, and for the purpose of showing the condition of the estate, and meeting the claims made by appellant American Surety Company of New York to credits as against the funds derived from the sale of real estate under the bonds they had executed, it was competent to prove the receipt of the money, its application to the payment of debts, and that it was intermingled with the real estate fund.
The special findings disclose that on June 13, 1903, the date at which appellant Moore filed his new bond under the third order to sell real estate, and released the sureties on
The court stated as its conclusions of law upon the findings made, that the plaintiff was entitled to a judgment against Jonathan J. Moore, as principal, for the sum of $3,984.97; that the plaintiff was entitled to a judgment against the American Surety Company of New York, as surety, for the sum of $3,810.64; that the plaintiff was entitled to a judgment against the American Trust Company of Lebanon, Indiana, as surety, for the sum of $95.43, and against the Bankers Surety Company of Cleveland, Ohio, for the sum of $78.90. Exceptions were reserved to these conclusions of law stated by the court. We think the court erred in its conclusions fixing the liability of these several sureties upon these bonds.
The judgment is reversed, with instructions to the court below to restate its conclusions of law in conformity with this decision.
Rehearing
On Petition for Rehearing.
Come now the appellants in the above-entitled cause, by Ira M. Sharp, and Hawkins, Smith & Hawkins, their attorneys, and come also the appellees herein, by P. H. Dutch, B. F. Ratcliff, and C. M. Zion, their attorneys, and appellants now, on motion, present their petition read
It is now ordered by the court, upon its own motion, that the record of the court in this cause be corrected, and the clerk of this court is directed to make a nunc pro iunc entry in said record as of July 1, 1908, ordering that the opinion of the court upon the petition for rehearing in this cause be withdrawn from the files. And it is further ordered that the petition of appellants, asking that said opinion of the court aforesaid be restored to the files of the court, be, and the same is now, overruled, and the restraining order herein dissolved; and that appellees have judgment for the costs of this proceeding.