36 Ind. App. 539 | Ind. Ct. App. | 1905
Lead Opinion
Appellant, as the assignee of a distributee, petitioned in the court below, under the decedents’ estates act, for the recovery of said distributee’s share of the estate of Sallie E. Ritchey, deceased. The appellee Anderson Carriage Company was made a party because it claimed to have an interest in the sum claimed by the petitioner. There were other parties, but the issues were formed by the amended petition, the answer of the Anderson Carriage Company thereto, and the reply of appellant.
There are a number of specifications of error. We deem it necessary to consider only one, namely: That the court erred in its conclusions of law, and each of them, on the special finding of facts.
The findings are, so far as they concern the appellant and appellee carriage company, as follows: (1) On the 8th day of September, 1899, Sallie E. Ritchey departed this life, intestate, in Johnson county, Indiana, leaving as her only heirs at law the petitioner herein, Lawrence E. Ritchey, Louise N. McKay and Georgia N. Eccles (who departed this life since the death of' said Sallie E. Ritchey, leaving as her only heirs at law [naming them] and also her husband, the defendant Lawrence P. Ritchey. (2) On the 6th day of January, 1901, William D. Whitesides was duly appointed administrator by this court of the estate of Sallie E. Ritchey, deceased, and qualified as such administrator. (3) All the personal assets of said estate that ever came into the hands of said administrator was one certain promissory note, dated November 6, 1897, due one year after date, for the sum of $1,000, with eight per cent interest from date, and executed by said Lawrence E. Ritchey in favor of said Sallie E. Ritchey. (4) Said administrator on the 26th day of June, 1902, realized on said note for said trust the sum of $1,320, the same being the principal and interest of said note. (5) That on the-day of June, 1902, said administrator filed in this court his only and final report of his said trust, in which he charged himself with said sum of $1,320 realized as aforesaid, being the only assets reported and received by him belonging to said trust. After paying all liabilities, expenses and costs of said trust said administrator reported a balance of $516.52 for distribution among the lawful
As conclusions of law the court stated: (1) That the petitioner, Lawrence E. Ritchey, take nothing by his action. (2) That the petitioner, Lawrence E. Ritchey, pay the costs of this action.
The finding that the transfer in the case at bar was for a fraudulent purpose is not enough to deprive appellant of his right as assignee. Eor anything that appears in the finding, Lawrence P. Ritchey may have had other property out of which appellee’s judgment could have been made. It does not appear from the findings that any attempt has been made to collect the judgment by the ordinary processes of law, or that the debtor was insolvent at the time of the transfer. It follows, therefore, that the conclusions of law were not justified by the facts found.
The judgment is reversed, with instructions to the trial court to restate the conclusions of law, and to render judgment in favor of the appellant.
Rehearing
On Petition for Rehearing.