22 Ind. App. 569 | Ind. Ct. App. | 1899
— This action presents a controversy between two estates. Henry Ormes, deceased, was administrator of the estate of Thomas W. Hilligoss, deceased, and it is here sought to hold the estate of the former liable for an alleged misapplication and conversion of money and property belonging to the estate of the latter, in a common law action. The case was first put at issue upon the verified claim filed by appellee, by answer and reply. Hpon the issues thus joined the1 case was submitted to the court for trial, and after the evidence was partly heard, a continuance was granted on appellee’s motion, to the end that he might amend his complaint. Subsequently an amended complaint was filed, upon which the case was finally tried.
A demurrer was addressed to the amended complaint, which was overruled and appellant excepted. The issues were joined by an answer in three paragraphs, and a reply in two, but as no questions are presented by the record for decision arising upon the answer or reply, we need not refer to them further. The case was tried by the court, resulting in a general finding and judgment for appellee. Appellant’s motion for a new trial was overruled, and he has assigned errors: . (1) That the court erred in overruling his demurrer to the amended complaint, and (2) that the court erred in overruling his motion for a new trial. We will determine the questions presented in their order.
Appellant enters upon a discussion of the alleged insufficiency of the complaint, by referring to the common law rule that an administrator de bonis non succeeds only to the rights
The complaint in the case before us unquestionably shows a misappropriation of the funds of the estate, and hence shows a conversion for which the first administrator would be liable upon his bond. As to whether his estate is liable, in an action by his successor, depends upon the construction put upon the statute cited, and similar statutes concerning the same subject-matter. The case of Anthony, Adm., v. McCall, Adm., 3 Blackf. 86, was very similar to the one now before us. There the action was by appellant, as administrator de bonis non of the estate of one Abraham Carey, against McCall, administrator of Samuel Carey, and it was to recover from the latter’s estate for a conversion of funds of the estate of appellant’s decedent while Samuel Carey was such administrator. The court said: “By one of the first rules of pleading, an action can only be brought by the person who has the legal right of action. The sufficiency of the declaration must, therefore, depend upon the legal rights and power of an administrator de bonis non. He is entitled to all the goods and personal estate, etc., which remain in specie, and were not administered by the first executor or administrator, as well as to all debts due and owing to the testator or intestate. The original representative, executor, or administrator, is liable for a devastavit, but such liability is not enforced, at the suit of the administrator de bonis non. The administrations are distinct. Each has peculiar duties and responsibilities. In the event of a devastavit committed by either, the heirs, creditors, and others, whose legal rights are affected, by appropriate action, may obtain redress. The administrator de bonis non, having no legal right of action, cannot be the medium of such redress, unless authorized by
The case of Young v. Kimball, supra, was decided while the statute of 1843 was in force. Section 382, R. S. 1843,
Section 2458 R. S. 1881, supra, was the statute relating to the subject under discussion when Lucas v. Donaldson, supra, was decided. That statute, without change or modification, has been carried forward in Burns 1894, being section 2613, and again in Horner 1897, being section 2458. It is only by virtue of that statute that a right of action is given to an executor for a devastavit of his predecessor, and that right of action is upon the bond. The common law rule to which we have adverted has not been changed by statute. In Lucas v. Donaldson, supra, the cause of action was founded upon the same principle and theory as the one at bar, and the Supreme Court referred to it in the body of the opinion as a “common law action”, and held that it would not lie.
The only case cited and relied upon by appellee in support of the sufficiency of the complaint is Nelson, Adm., v. Corwin, Adm., 59 Ind. 489. The complaint in that case was upon a bond and the facts averred, briefly stated, were as follows: That one Wm. Griffith was the owner of certain land and personal property; that by his will he devised his real estate to his only child, Haney J., and bequeathed to her $200 in money on certain conditions; that by said will one Abel Griffith was appointed executor; that said William died, leaving said will in force, and that said child survived him; that at William’s death said will was probated, and said Abel, as such executor, executed a bond in the sum of $500, with Allen Makepeace surety; that, as such executor, personal property came into the possession of said Abel, of the value of $1,200, being $800 more than was required to pay the debts of said estate; that said Abel converted said property to his own use; that he died, and his estate was settled as insolvent; that said Nancy Jane, while still a minor, intermarried with one Wm. L. Bird, and remained his wife till she died; that anpellee became administrator of her estate; that said Allen Makepeace died, and appellee became admin
The case does not lend support to appellee’s position, but is really against it. It does not overrule the earlier decisions, but is in harmony with them, and also in line with the principles discussed in Lucas v. Donaldson, 117 Ind. 139. Section 162 Vol. 2, R. S. 1876, is identical with section 2458 Horner 1897. Appellee has his remedy under sections 2458 and 2459 Horner 1897, and, as construed in Myers, Ex., etc., v. State, ex rel., 47 Ind. 293, but he can have no relief in his action as presented by the record before us.
As the only right of action given by statute to an administrator de bonis non for a conversion of any part of the personal assets of the estate of his predecessor is upon his official bond, and as an action will not lie in his favor for a tort of
Henley, J., did not participate in the decision of this case*