73 Ind. App. 415 | Ind. Ct. App. | 1920
Complaint by appellees to revoke letters of administration de bonis non, with will annexed, of the estate of Robert M. Carney, issued to appellant.
Appellant filed an answer in two paragraphs alleging in substance that in 1903 Robert M. Carney, Marcus W. Collett, Thomas Flinn and Silas Storer with others as sureties executed a certain bond, with Robert C. Hillis as principal, for the construction of a certain ditch. Hillis, having defaulted in his contract, the drainage commissioner, during the lifetime of Robert M. Carney, commenced suit on said bond against Hillis and the sureties thereon. Robert M. Carney died in November, 1909, testate, and in December, 1909, Lucy A. Carney qualified as executrix and as such was made a party defendant to said action. Said executrix filed her final
The sui-eties on said bond in defending said action incurred expenses in the sum of $2,500. The principal on said bond, Robert C. Hillis, being insolvent, it was agreed by and between Marcus W. Collett, Silas Storer, Thomas Flynn, Michael A. Jordan and Robert M. Carney, they being the only solvent sureties, that all of the expenses in defending.said action should be borne by them jointly in equal shares. No part of said expense owing-by Robert M. Carney and his estate have been paid except $20, which Mrs. .Carney paid after' her discharge in 1911. In 1916 Marcus W. Collett, Thomas Flynn and Silas Storer filed their verified application asking that said Storer be appointed admin
Prior to the taking effect of §2757, supra, the approval of the final settlement of an administrator was an adjudication, whether the administrator had turned into the estate all the personal estate belonging to it and all claims of every nature due to it, and such adjudication was final and conclusive unless appealed from or assailed for mistake or fraud within three years after the final settlement. The legislature by the passage of said section clearly intended to change the former rule so that an estate might have the benefit of assets omitted in the former administration, although there had been a previous final settlement. Under this section the former settlement stands and, without setting it aside, the estate may be opened for the purpose of administering omitted assets. As said by this court in Michigan Trust Co. v. Probasco (1902), 29 Ind. App. 109, 63 N. E. 255: “The former settlement continues to be a final adjudication as to all matters except these omitted and unadministered assets.” In an earlier case this court said: “By the passage of this act, it was doubtless intended to reach any assets, for the benefit of creditors, legatees, or heirs which had not been administered upon in the former administration.” Barnett v. Vanmeter (1893), 7 Ind. App. 45, 33 N. E. 666. Under the former law a period of three years was allowed any person interested, in an estate to have the final settlement set aside upon a proper showing of illegality, fraud, or mistake in such settlement, or in the prior proceedings in the estate. Failing in this, the person was without remedy, unless he was an heir or legatee and the claim came to him through the estate.
As said by the court of appeals of New York in discussing a similar statute: “The design of the statute, requiring the publication for creditors to present their claims, evidently was to give notice to persons holding demands, so that the executor or administrator might ascertain the amount of the indebtedness existing against the estate, and liquidate the same. It was not intended that any claim should be excluded; and the fact that the debt was not then due, or that it was dependent upon a contingency, and hence was in a condition of uncertainty, so that it could not be made out, would not, we think, prevent the operation of the statute of limitations where there was a failure .to bring the suit within the time required. The statutes relating to claims against deceased persons comprehend a general system in reference to such demands. * * * They embrace those which are due, as well as such as are contingent and likely to become due, or which by any possibility may be established; and no good reason is shown why a person who may, perhaps, become liable to pay money, as a cosurety with a deceased person, should not make out and present a claim for .contribution, the same as any other claimant against the estate of such co-surety.” Cornes v. Wilkin (1879), 79 N. Y. 129.
The estate of Robert M. Carney was administered in the circuit court of Cass county. The action against Hillis and his sureties on the bond was on change of venue sent to the Howard Circuit Court. If appellant and his cosureties desired to subject the estate of Robert M. Carney to the payment of their claim for contribution, they should have filed their claim against his estate before the filing of the final report by the executrix, as required by the statute. The facts alleged did not authorize the appointment of an administrator de
Judgment affirmed.