32 Ind. App. 146 | Ind. Ct. App. | 1903
This was an action on the bond of Peter W. Schaden, as administrator of James Franklin Smothers, deceased, against the appellants, who were sureties on the bond; the administrator having died, and the action being brought by the appellee, administrator de bonis non of said estate.
The appellants present for our consideration the question as to the sufficiency of the complaint after verdict, and the action of the court in sustaining a demurrer to their second and third paragraphs of answer.
In the complaint it was shown, in substance, that m 1896 one Catherine E. Sunderland commenced a proceeding in the superior court of Allen county against James Franklin Smothers and others, named, for the partition of certain real estate in that county; that such proceedings were had therein that the court found and decreed that the real estate was indivisible and should be sold, and one-eighth of the proceeds, less costs, be paid to' James Franklin Smothers, appellee’s intestate; and the court appointed Peter W. Schaden as-a commissioner to sell th,e real estate, and to distribute the proceeds according to the decree. It was averred that Schaden accepted the appointment, and executed and filed his bond for the faithful discharge of his duties as such commissioner, sold the real estate, and collected the proceeds (being a specified sum) July 1, 1897; that the share of the proceeds, after payment of costs and expenses, which by the decree should be paid to James Franklin Smothers was $409.01; that December 20, 1897, Schaden was appointed by the Allen
In the third paragraph of answer, a demurrer to which also was sustained, it was alleged that the James Eranklin Smothers alleged in the complaint to have deceased intestate, since prior to the year 1889, with his wife and children, had for a long period lived in the state of Mississippi, and there acquired a residence and domicile, and never became a resident of Allen county, Indiana; that in the latter part of the year 1891 Smothers left his home in Brookhaven, Lincoln county, Mississippi, abandoned his wife and children, and went to live with a colored woman within a few miles of his home, and never thereafter lived with his own family, and his wife, within a year or two thereafter, procured a divorce from him in that state; that his three children, named, in 1897 employed Schaden, the principal in the bond in suit, as their attorney to recover for them whatever he could from the interest of their father inlands in Allen county, Indiana, and Schaden remained their attorney until his death; that as such attorney ho filed a paper in the office of the clerk of the Allen Circuit Court, Eebruary 16, 1897, as follows: “State of Indiana, Allen County. In the Allen Circuit Court, February term, 1897. In the matter of the estate of James Franklin Smothers, an absentee. Petition. To the Honorable Allen Circuit Court. Tour petitioner shows and represents to the court that during the year 1889 Janies Franklin Smothers was a resident of Allen county, and State of Indiana; that during; gaid year §&id
It was further alleged that thereafter, without an order of court or any indorsement on said paper, Schaden, as such attorney, procured to be published a notice of the filing of such petition, and that the same would be heard April 1, 1897, for one insertion 'only in the Ft. Wayne Weekly Journal and Indianapolis Daily Sentinel, on February 20 in the latter and on February 18 in the former; that the only action, order, or proceedings of the Allen Circuit Court in relation thereto was had and done and entered December 11, 1897, and the order-book entry thereof, duly signed by the court, is as follows: “No. 7378. Day 23, November term, 1897. December 11, 1897. In re James Franklin Smothers, an absentee. Comes now John Henry Smothers and shows to the court that due notice of the filing and pendency of the petition herein was given said James Franklin Smothers by publication in the Indianapolis Daily Sentinel, a newspaper of general circulation, printed and published in the city of Indianapolis, State of Indiana, to appear to said petition on the 1st day of April, 1897, which notice and the proof of publication thereof are in these words (here insert); and said John Henry Smothers further shows to the court
It was further alleged that said James Franklin Smothers was not a resident of the State of Indiana, but was, and for years has been, a resident of and living with his wife and children in the state of Mississippi, at the time he abandoned his family and absented himself from his usual place of residence in 1891, and never thereafter became a resident of the State of Indiana, and is not dead, but is still living; that, based upon the said proceedings evidenced by the entry aforesaid, Schaden procured himself to be appointed administrator of the estate of James Franklin Smothers, as an absentee, on the - day of December, 1897, on filing the bond in the complaint set forth, and received letter’s of administration showing such appointment, reciting the fact that said James Franklin Smothers “is adjudged dead in law;” that such appointment was based solely upon said proceedings, and not upon any other ground or cause, and that the appellee was appointed as administrator da bonis non of the estate of Smothers upon showing of the - death of Schaden, and that he had not accounted for the funds of said estate.
With their general verdict in favor of the appellee for $409.01, the jury returned special findings in answer to
Assuming for the present the sufficiency of the' complaint, we may here dispose of the second paragraph of answer, which is to the effect that Schaden never paid to himself, as administrator, the sum of $409.01, the proceeds of the sale of the real estate, or any sum; that before his appointment as administrator he converted to his own use all of that fund except $12.65, which he, as commissioner, after his appointment as administrator, checked out of bank to himself personally, and used for his own benefit. This paragraph was addressed, as were all the .others, to the entire complaint, It was his duty as ad
It is urged by way of objection to the complaint that it contains no averment of the death of James Eranklin Smothers, or of the time of his decease, if he died, and that it does not appear that he did not die seized of the real estate, and that therefore the complaint failed to show any assets received by Schaden for the conversion of which the appellants are liable on his bond as administrator.
In opposition to the ruling upon the demurrer to the third paragraph of answer, it is contended that the proceeding under which Schaden was appointed as administrator was void, for the reasons that the Allen Circuit Court could not acquire jurisdiction of the estate of a nonresident of Indiana under the statute relating to the estates of absentees (§2385 et seq. Burns 1901); that such proceeding did not constitute due process of law, within the meaning of the fourteenth amendment to the Constitution of the United States; that a judgment which appears on its face to have been rendered without notice is void and subject to collateral attack; that the notice of
The Allen Superior Court had jurisdiction of the proceeding for partition of the real estate situated in that county. Acts 1877, p. 43; Hockemeyer v. Thompson, 150 Ind. 176; §1201 Burns 1901. By the commissioner’s sale and conveyance the title to the real estate passed to his grantee, and the proceeds of the sale in the hands of the commissioner constituted personal property of the late owners of the real estate. The validity of the proceeding td appoint an administrator of the estate of the absentee, under the statute, would not be affected by the fact that in truth he was still alive. It was not necessary, under the statute, to show that he was dead. It was only needed that the requirements of the statute be observed.
The statute gives jurisdiction of such a proceeding to the court having probate jurisdiction in the county where the absent person last resided, “or where such property is situated-” It was not required that the absentee at any time should have been a resident of Allen county, Indiana. It was sufficient if he had been a resident of this State, and had left property which was situated in that county. It is not averred that he was not at any timo a resident of this State, or that he never absented himself from his usual
The statute provides that the court shall have jurisdiction over the estate of the absentee in the same manner and to the same extent “as if dead,” and shall appoint an administrator of his estate, who shall have all the powers and rights over the estate and be “subject to all the liabilities and duties in relation thereto that appertain to administrators of decedents’ estates,” and that the property of the departed person, real and personal, and all his rights, obligations, and dioses in action shall be subject to the same liabilities, incidents, rights, management, and disposal, in all respects, as if the departed person were known to be deceased, and all adjudications and acts done by the administrator “shall he valid, effectual and binding on such person, should he return, as if they were his own acts;” the acts and doings of the administrator being in good faith and without fraud. §§2385, 2390 Burns 1901.
When Schaden was appointed as administrator of such estate there was personal property in the county belonging to the absentee, who in the answer is alleged to be in fact still alive. It was the duty of the administrator to take into his possession such personal property, and, having done so, he was subject to the liabilities and duties in relation thereto that would have appertained to him if he had held such property as administrator of a decedent’s estate.
What counsel have said in argument in relation to fraud upon the court on the part of the children of the absentee does not seem to be applicable to facts alleged in the pleadings.
We will not take space to examine the matter of the notice by publication discussed by counsel. We are of the opinion that the sureties on the bond of Schaden as admin
The statute (§2394 Burns 1901) providing for the appointment of an administrator de bonis non requires that he shall be a person entitled to letters of administration, which are to be granted to him “under the same regulations as in case of the issuing of the original letters.” It does not appear that in the appointment of the appellee there was any omission of any of the regulations for the issuing of letters to him which would have been proper in case of the original issuing of letters in such a case. By pleading in bar, and not in abatement, the appellants admitted the capacity of the appellee to sue in the character of administrator de bonis non.
The appellee has authority to collect personal assets of the absentee, whether he be in fact living or dead. The case seems much the same in principle as if the absentee himself had returned, and he having demanded unsuccessfully his unexpended assets from the original administrator, or the administrator having died after converting the assets to his own use, the rightful owner had brought suit upon his bond. The sureties ought not to be permitted to assail the validity of the appointment for the purpose of defeating recovery by the party entitled to the assets which were obtained by their principal in his capacity of administrator through their execution of the bond. See Gray v. State, ex rel., 78 Ind. 68, 41 Am. Rep. 545, and cases
Judgment affirmed.