69 Ind. App. 295 | Ind. Ct. App. | 1917
Jeremiah Gochenour, administrator de bonis non of the estate of Theodore Scott, deceased, filed his petition in the White Circuit Court, on Sep
Thereupon appellant filed a pleading denominated an answer to ’ the amended petition, .in which he alleged that he had filed two claims against the estate which had been allowed by the former administrator, and that it was necessary to sell the real estate of decedent to make assets to pay such claims.
Appellee Bertha M. Eldridge filed a verified special answer, in the first paragraph of which she alleged that she was the daughter and only heir at law of the decedent; that she owned the real estate described in the petition of the administrator, and the same was not liable for sale to make assets to pay debts of the estate; that the only claims on which the administrator based such necessity were two notes calling for $1,000 each, alleged to have been executed to appellant by Oregon Eldridge and by the decedent in his lifetime; that decedent never ’ executed such notes, and that the name appearing’ thereon as his' signature was false and forged. In a second paragraph she alleged substantially the sanie facts as in the first paragraph, and also that “the allowance of said claim was fraudulent against” her and against said estate. She also filed answer in general denial. The other defendants to the petition filed no pleadings and made no defense.
The findings set out facts which show that the administrator de bonis non had in his hands funds sufficient to pay the costs and expenses of administration, and that there were no unpaid claims against the estate other than those of appellant; that one of such claims was based on a note purporting to have been executed on October 16, 1909, for $1,000 to the order of J. D. Timmons, by Oregon Eldridge and Theodore Scott; that the other claim was based on a note for like amount, purporting to have been executed on January 10,1910, to J. D. Timmons, by Ore. Eldridge, Theodore Scott and Stephen Eldridge; that said Scott did not sign or execute either of said notes, nor receive any part of the consideration therefor, and his name appearing thereon was false and forged by the act of the "defendant Oregon Eldridge, and .said Scott at no time had any knowledge thereof; that the claims of appellant were filed on February 15, 1912, and were immediately allowed by said Eldridge as administrator of said estate, who knew that the signature of decedent to such notes was false and forged, and that no part of the consideration therefor was received by the decedent; that the allowance of such claims by said administrator was false and fraudu
The court stated its conclusions of law, in substance, that there was no necessity for selling the real estate of decedent to pay debts of his estate; that the claims of appellant were not enforceable against the real estate described in the petition, and the administra tor was not entitled to an order to sell such real estate; that Bertha M. Eldridge and William Guthrie are entitled to recover costs against appellant. Judgment was rendered in accordance with the conclusions of law. Appellant filed a motion for a new trial, which was overruled.
Appellant has assigned as error each conclusion of law and the overruling of his motion for a new trial. The only questions presented by the briefs arise under the motion for a new trial, and relate to the competency of a certain witness, the admission of certain evidence over appellant’s objection, and the sufficiency of the evidence to support the findings of the court.
It was alleged in the pleadings that Oregon Eld ridge was the husband of Bertha M. Eldridge.
Oregon Eldridge was called as a witness by his wife, and testified that he acted as administrator of the estate of Theodore Scott, deceased, and as such allowed appellant’s claims against the estate; that he had forged the name of Theodore Scott to the note's held by appellant, and knew when he allowed the claims that decedent had not signed the notes; that decedent never knew his name was on the notes, and he had no knowledge of their existence.
On cross-examination appellant questioned the witness about the fact and time of his appointment as
On re-examination counsel for Bertha M. Eldridge asked about the use made of the money so obtained. The witness was then shown á check dated January 18, 1909, which he had already examined, and was asked to give the court his best recollection as to the money obtained thereon being used to pay for sawing out the timber on the farm for a house which he built in town.
The use made of the money for which the notes in question were given was first inquired about by appellant on cross-examination of the witness. We are unable to see that the questions about the use made of the money were proper cross-examination of the witness. The vital issue was the execution of the notes by Theodore Scott, and the questions about the use of the money afford no light upon that subject. Eor all practical purposes appellant made the witness his own on that subject. The situation, therefore, is analogous to that of a party calling as his witness an adverse party, who under the statute is not a competent witness against'him. Therefore, on the facts of
Section 528a Burns 1914, Acts 1913 p. 840, provides: “That in any proceeding before a court or judicial officer of the State of Indiana where the genuineness of the handwriting of any person may he involved, any admitted or proved handwriting of such person shall he competent evidence as a basis of comparison by witnesses or by the jury, court, or officer conducting such proceeding, to prove or disprove such genuineness.”
The objection is based wholly on the proposition that the paper in question had not been introduced in evidence in the case. The statute makes provision for any admitted or proved handwriting. The handwriting might he proved or the signature admitted to he genuine, without placing the instrument in evidence. Ashwell v. Miller (1913), 54 Ind. App. 381, 389, 103
It is also claimed that the admission of proof on behalf of Mrs. Eldridge to show that the notes in question were not genuine, and therefore that she was not bound by the allowance of the administrator, was an attempt to set aside the allowance of the claims by parol proof; that the allowance of such claims by the former administrator was a judgment, and it was error to permit the former administrator to impeach such judgment by parol testimony as to the forgery of the notes, and his knowledge thereof at the time he made the allowance in appellant’s favor.
Some other questions are suggested in the briefs, hut they do not hear upon the merits of the controversy, nor in any way affect the judgment from which this appeal is prosecuted.
Judgment affirmed.
