54 Ind. App. 680 | Ind. | 1913
This action was brought by the appellant in the Tipton Circuit Court on October 16, 1911, to set aside the appointment of Solomon D. Adams, as administrator of the estate of Eliza Bamseyer, deceased. The errors assigned are: (1) The overruling of appellant’s demurrer to appellee’s answer; (2) the overruling of appellant’s motion for new trial.
The appellant in his petition alleges that he was a nephew of the decedent and entitled to share in the proceeds of her estate; that she left no husband, children, father, mother, brother or sister surviving her; that decedent for many years lived in Tipton County, Indiana, and on August 2, 1910, moved to Clinton County with the purpose and intention of residing there permanently; that said Eliza Bamseyer died intestate at said county on September 20,1910, and at the time of her death was a resident of Clinton County, Indiana; that she left an estate consisting of money and personal property in said county of the value of $1,200, that on September 24, 1910, one India S. Ghere was duly appointed and qualified as administratrix of said estate; that thereafter on September 30, 1910, said administratrix filed in the Clinton Circuit Court her final report and resignation and on said day the court approved the same, accepted her resignation and discharged her from further duties in said estate; that thereafter, on October 7, 1911, one Otto M. Hammond, a resident of said Clinton County was by said court appointed administrator de bonis- non of the estate of said Eliza Bamseyer, deceased, and duly qualified as such administrator; that while said estate was pending in said Clinton Circuit Court, on September 30, 1910, one Solomon D. Adams, petitioned the Tipton Circuit Court to be appointed administrator of said estate and was thereupon appointed, gave bond, qualified and entered upon the discharge of his duties as administrator of said estate; that the letters so issued to said Adams were improvidently issued and are illegal and void and should be revoked. A
In the report of the said India S. Ghere, it was shown that she had not taken an inventory of the personal property of said decedent, had taken no steps whatever in the administration of said estate, and did not have in her possession any property of said estate. "With said report she tendered her resignation and asked the court to appoint some other person in her stead. The court examined and approved said report, accepted her resignation and discharged her from further duty in said estate.
The appellee filed an answer to appellant’s petition to set aside his letters of administration and in substance alleged the facts showing his appointment, the resignation and discharge of said Ghere under the circumstances above shown. He further averred that the Clinton Circuit Court never had any jurisdiction over said estate for the reason that said Eliza Ramseyer, deceased, was at the time of her death, an inhabitant of Tipton County, Indiana, and had been for more than 40 years prior thereto, and never was a citizen of Clinton County, Indiana; that there was no administration of said estate pending in any court when appellee was duly appointed by the Tipton Circuit Court as administrator of the said estate; that in his application he showed that said decedent was at the time of her death an inhabitant of the county of Tipton, in the State of Indiana; that after his appointment as such administrator, appellee in his trust capacity brought suit in the Clinton Circuit Court against Judith Sample to recover from her certain money belonging to said estate, and also brought suit in said court against said India S. Ghere to obtain from her certain purchase money for certain real estate obtained by her from said Eliza
The court heard evidence from numerous witnesses and for the purpose of this opinion it is sufficient to say that there was a conflict of evidence as to whether the residence of the decedent at the time of her death was in Tipton or Clinton County. Some of the evidence tended to show that she left her house furnished in Tipton County; did not dispose of her personal property and was only temporarily sojourning in Clinton County when she died; other of the testimony tended to show that she had declared her intention of making her permanent residence in Clinton County and resided there for sis. weeks continuously immediately prior to her death. There was also evidence tending to show that the decedent had lived in Tipton County for about fifty years and that she owned a residence in Sharpsville; that she was afflicted with cancer of the stomach; that in August, 1910, she was visited by India S. Ghere and Judith Sample and returned with them to the city of Frankfort and there died at the home of Mrs. Sample on September 20, 1910; that she deeded her property to Mrs. Ghere on September 3,1910, and a few days before her death gave to her a power of attorney to dispose of her personal property; that she had a certificate of deposit for about $1,200 and the same
The appellee was appointed Sept. 30, 1910, and said administrator de bonis non was not appointed by the Clinton Circuit Court until October 7, 1911. Appellant in his brief states: “On the 24th day of Sept., 1910, Mrs. Ghere filed her report and resignation of her trust and asked that the court appoint a successor. Her resignation was accepted.” Appellant contends that on the undisputed facts of this case it appears that by the appointment of Mrs. Ghere as administratrix of said estate, the Clinton Circuit Court acquired jurisdiction over said estate and that such jurisdiction continued and is conclusive against a collateral attack; that for this reason it was the duty of the Tipton Circuit Court when such facts were brought to its notice, to set aside ap- • pellee’s appointment and annul his letters.
Note.—Reported in 100 N. E. 573. See, also, under (1) 18 Cyc. 67; (2) 18 Cyc. 143; (3) 18 Cyc. 140, 141; (4) 18 Cyc. 150; (7) 18 Cyc. 157; 31 Cyc. 57. As to collateral attack on right of acting executor or administrator, see 81 Am. St. 535. As to collateral attack on a decree granting letters testamentary or of administration, see 4 Ann. Cas. 1117.