66 N.E.2d 142 | Ind. Ct. App. | 1946
This action was brought by the appellant in the Marion Superior Court and through it she seeks to recover from the appellee, as an individual, the sum of $11,577.00 which she claims is her property and which she turned over to the appellee, as the executor of the estate of Emily Collison, deceased, now pending in the Marion Probate Court, under the mistaken impression that said money was legally an asset of said estate and which was accepted by the appellee, as such executor, under a like erroneous impression. The Marion Superior Court concluded that, even so, it had no jurisdiction of the subject matter of the litigation because it considered the money involved to be in the exclusive custody of the Marion Probate Court and entered judgment abating the action.
The appellant contends that her suit was properly instituted in the Marion Superior Court against the appellee in his personal character because (1) the things or occurrences of which she complains happened after the death of Emily Collison and do not constitute a claim against her estate within the meaning of § 6-1001, Burns' 1933, requiring claims to be filed in the office of the clerk in which said estate is pending; (2) she cannot sue the appellee in his representative capacity because the estate which he represents is not chargeable with his unlawful acts; and (3) as the money she seeks to recover is not an asset of the Collison estate and came into the appellee's hands as the executor thereof under the mistaken impression that it was such an asset, the appellee holds said money in his personal character and not as an officer of the Marion Probate *652 Court and therefore the subject matter of this litigation is not in custodia legis.
We agree with the appellant in her first contention. The cause of action she asserts is not a claim against the estate of Emily Collison, deceased, and the procedure for its 1, 2. enforcement is not controlled by § 6-1001, Burns' 1933. In construing this statute the Supreme Court said inWilliams v. Williams, Admr. (1940),
In reference to the appellant's second contention it may be said that it is the general rule that an estate cannot be held liable for a tort committed by the trustee, executor, or 3, 4. administrator thereof. Hankins, Adm'r. v. Kimball
(1877),
This brings us to a consideration of the appellant's third contention that in the administration of a decedent's estate no property can be said to be in custodia legis when it does not belong to such estate and its possession is wrongfully obtained or withheld by the executor thereof.
In support of this contention the appellant relies chiefly upon five early Indiana cases, to-wit: Rodman v. Rodman,Administrators (1876),
We find a discussion of the question of jurisdictional conflict between co-ordinate courts, under circumstances somewhat similar to those at bar, in the case of Martz v. Putnam (1889),
The above cases apparently leave the appellant free to sue the appellee as an individual in the forum of her choice. However, in two recent decisions, the Supreme Court has treated the fact that an administrator or executor is wrongfully in possession of another's property as unimportant in determining whether such property is in custodia legis. State ex rel. Tuell v. ShelbyCircuit Court (1939),
In State ex rel. v. Shelby Circuit Court, supra, the facts disclose that the administrator of the estate of Ray S. Tuell, deceased, by appointment of the Marion Probate Court, took 5. possession of certain property in Shelby County alleged to belong to a partnership composed of one Lowell G. Ash and the said Ray S. Tuell in his lifetime. Thereafter the said Ash, as the surviving partner, filed his affidavit in the Shelby Circuit Court for an order authorizing him to close out the partnership business under the provisions of the statute governing such matters. The order was granted and thus a conflict of jurisdiction between the Marion Probate Court and the Shelby Circuit Court was set up. Under the law of this state Ash, as the surviving partner, had the right to administer the assets of the firm and in that sense the possession of such assets by the administrator of the Tuell estate was unlawful. Nevertheless, the court held: "Property in the hands *656
of an administrator or an executor is in Custodia Legis. The possession of such administrator is the possession by the Court.Hudson, etc. v. Wilber, Saginaw Circuit Judge,
Thus it is apparent that the latest decisions of the Supreme Court as to when property, involved in the administration of a decedent's estate, is in custodia legis sustain the 6. conclusions reached by the court below and constitute ruling precedents which we must necessarily follow.
The questions we have discussed arise on legal and factual issues joined on the appellee's answer in abatement of the appellant's cause. Over the appellant's objection the court 7. permitted the appellee to file such answer after he had appeared generally in the case. This the appellant contends was error. As the answer in abatement went to the jurisdiction of the court over the subject matter of the litigation the question was timely at any stage of the proceedings and could not be foreclosed by a general appearance.
Judgment affirmed.
Royse, P.J., not participating.
NOTE. — Reported in