47 Ind. 345 | Ind. | 1874
This action was brought by John W. Davis,, guardian of Emily Vandine, against Armstrong Alexander, former guardian of the said Emily, and the appellants as the heirs at law of John T. Tucker, who was the surety of the-said Alexander.
The complaint alleges that Armstrong Alexander was, on-the 19th day of February, 1861, appointed the guardian of the said Emily Vandine, and as such gave bond with John T. Tucker as his surety; that as such guardian he received in money and property the sum of nine hundred and seventy-four dollars and ninety-nine cents; that in June, 1873, the-said Alexander resigned said trust, at that time having in his-hands the said sum of money by him received; that the said relator, John W. Davis, was appointed the successor of the-said Alexander; that on the 16th day of June, 1863, the said John T. Tucker departed this life intestate, seized of certain described real estate, and leaving the appellants his-heirs at law; that all of the personal estate had been exhausted in the payment of the debts of such estate; that such estate had been finally settled on the 19th of October, 1864; that the appellants were the owners of certain described real estate by descent from the said John T. Tucker; and, that as the said Alexander was hopelessly insolvent, judgment was demanded against the heirs of the said Tucker for the amount due from the said Alexander as-guardian to the relator.
Alexander did not appear, but suffered judgment to go against him by default.
The appellants jointly demurred to the complaint, upon ■the ground that it did not state facts sufficient to constitute
The appellants answered in four paragraphs, in substance,, as follows:
1. The general denial.
2. That at the death of the surety, Tucker, on the 16th of June, 1863, there was in the hands of Alexander, of his. ward’s estate, three hundred and sixty-nine dollars and sixty cents, and no more, and that afterward he made a settlement with the court and fully accounted for the same.
3. That at the time of settlement of the estate of the surety, Tucker,-there was in the hands of said Alexander, of his ward’s estate, three hundred and sixty-nine dollars and sixty cents, and no more; that at that time he was the owner of property of the value of ten thousand dollars, and so continued to be from the death of Tucker, June 16th, 1863, until January 1st, 1871; and that there was no breach of the conditions.of his bond from its date to January 1st, 1871.
4. That at the time of the final settlement of the estate of John T. Tucker, there was in the hands of said guardian belonging to his said trust three hundred and sixty-nine dollars and sixty cents, and no more; that after his failure and assignment for the benefit of creditors, his trustees paid-to the relator said account and the interest thereon in full.
To the second, third, and fourth paragraphs of the answer demurrers were sustained, and exceptions taken.
The cause was submitted to the court for trial, and resulted in a finding for the appellee. The court found specially that Armstrong Alexander, former guardian of the said Emily Vandine, was indebted to the relator in the sum of six hundred and sixty-eight dollars and seventy cents, and the description and value of the real estate inherited by each of the appellants.
A motion for a new trial was overruled, and judgment rendered on the finding. It is provided in the judgment that it shall first be levied of the goods and chattels of
The appellants have assigned for error the overruling of the demurrer to the complaint and sustaining the same to the second, third, and fourth paragraphs of the answer.
Several objections are urged to the complaint.
It is, in the first place, argued that the complaint is bad for not showing when the moneys received by Alexander came to his hands, whether before or after the death of Tucker, the surety, and the settlement of his estate; and, also, for failing to show when the • breach in the condition of the bond occurred, whether before or after the death of Tucker.
These questions, however, more directly arise upon the answer, and will be disposed of when we come to consider it.
It is, In the second place, insisted that the complaint is bad, because it does not aver that a demand was made of the heirs of Tucker before the commencement of the action.
If the action was against Alexander and Tucker, no demand would be necessary. It was the duty of Alexander, when he ¡resigned, to pay the money to his successor. Lane v. The State, 27 Ind. 108; The State, ex rel. Roberts, v. Fleming, 46 Ind. 206; Scott v. The State, ex rel. Roberts, 46 Ind. 203. The liability of the surety is fixed by the failure of the principal, and there can be no liability against the heirs of the surety, unless the surety would be liable if living. Then, as no demand of the surety is necessary, we think none is required upon the heirs of such surety.
It is, in the third place, insisted that the complaint is defective for not averring that the money which was in the hands of Alexander at the time of his resignation remained due and unpaid at the time when the action was brought.
The complaint, after alleging the appointment of Alexander and the execution of the bond in suit, with Tucker as his surety, avers, that “ afterward, and while so acting as such guardian of his said ward, there came into the hands of such guardian personal property of his said ward, amounting to
The sentence is incomplete, ungrammatical, and senseless as it stands. If the words “ remained and ” were inserted after the word “alleged,” the sentence would then read, “ that said sums, at the resignation of said guardian hereinafter alleged, remained and still remains due and wholly unpaid.”
The complaint in this regard was amendable in the court below, and will be regarded as amended here. The State v. Cross, 6 Ind. 387; Langdon v. Bullock, 8 Ind. 341; Key v. Robinson, 8 Ind. 368
In was held in The State v. M’Clane, 2 Blackf. 192, and the State v. Cross, supra, that in a suit upon an official bond payable to the State, the non-payment of the penalty need not be averred.
As we regard the complaint as amended good in this respect, we are not required to decide whether the same rule is applicable to actions on guardians’ and administrators’ bonds; and such bonds as are payable to the State, and yet are not official bonds.
We pass to the consideration of the answers. Two questions are presented and discussed by counsel.
1. Is the estate of Tucker liable for a default of Alexander which occurred subsequent to the death of Tucker ?
2. Are the heirs of Tucker liable for a default of Alexander which occurred subsequent to the final settlement of the estate of Tucker?
We think it is settled by the authorities that the estate of Tucker was liable for the default which occurred subsequent to his death.
In Broome v. The United States, 15 How. 143, it appeared that thebondof Crane as collector, with Swain.and Macon, hissure
In Hall v. Martin, 46 N. H. 337, it was held that the heirs ■of the grantor were liable to the grantee for a breach of the ■covenants of a deed, which occurred subsequent to the death of the grantor. The authorities are reviewed and they fully support the ruling.
In Wood v. Leland, 1 Met. 387, it appeared that Wood ■and Leland were sureties upon the bond of Harrington as guardian; that Leland died in 1836, and his estate was finally settled in 1834; that a breach of the bond occurred in 1837, which Wood, the surviving surety, paid, and this action was brought against the heirs of Leland to obtain contribution ; and the court held that the heirs were liable to contribution in favor of the co-surety of their father.
In Parsons v. Parsons, 5 Cow. 476, it was held that the
This leaves for our determination the second question ■stated, and that is, whether the heirs of Tucker are liable for a defalcation which occurred subsequent to the final settlement of his estate.
Section 62 of the act relating to the settlement of decedents’ estates, 2 G. & H. 501, reads as follows:
“ Sec. 62. A succinct statement of the nature and amount ■of every claim, whether due or not, against the estate of any decedent, except judgments which are liens upon the decedents’ real estate, and mortgages of his real and personal ■estate obtained and executed in his lifetime, and expenses ■of administration, must be filed in the office of the clerk of "the proper court of common pleas, within one year from the date of the first appointment of an executor or administrator therein, and notice thereof; or no cost shall be recovered therein against such executor or administrator; nor shall hereafter any other court have original jurisdiction of any ■claim, except such liens against the estate of any decedent; and, if such claim be not due, interest thereon shall be rebated, •and after the expiration of one year from such appointment and notice, if such claim be not filed at least thirty days before final settlement of the estate, it shall be barred, except as hereinafter provided in case of liabilities of heirs and devisees.”
The above section requires all claims, except such as constitute liens on the real and personal estate of the decedent, •and expenses of administration, to be filed within a year from the appointment of the executor or administrator, and if not so filed thirty days before the final settlement of such estate, they are barred, except the claims are of such a character as to create a liability against the heirs, devisees, and ■distributees of such decedent.
The liability of heirs, devisees, and distributees is regu
“Sec. 178. The heirs, devisees and distributees of a decedent, shall be liable to the extent of the property received by them from such decedent’s estate, to any creditor whose claim remains unpaid, who, six months prior to such final settlement, was insane, an infant, or out of the State; but such, suit must be brought within one year after the disability is removed:” 2 G. & H. 534.
By the above section, the heirs, devisees, and distributees of a decedent, although they may have received property from such decedent, are not liable to a creditor who failed to file his claim against such estate as required by section 62 of said act, unless such creditor was, for six months prior to such final settlement of such estate, insane, an infant, or out. of the State, in which case the bar created by section 62 does not operate, and such creditor may bring his action within twelve months after the removal of the disability against such heirs, devisees, or distributees.
It is provided by section 186 of said act, that “ no such suit shall be delayed, nor shall the remedy of a claimant be suspended by reason of the infancy of any heir, devisee, or distributee ; but guardians to defend their rights in such suit, shall be appointed as in other cases.” 2 G. & H. 535.
It appears of record that the action is brought by the guardian of one of the former wards of Alexander, and that such person was at the time of such final settlement, and for six. months prior thereto had been, an infant. Being such infant rendered the filing of the claim against such estate unnecessary ; and while the action might have been brought, as it has been, before the infant became of age, yet, by section 178, supra, such infant was not compelled to sue before arriving at age. Section 186, supra, has exclusive reference to the. infancy of any heir, devisee, or distributee, and has no application to an infant creditor of the estate.
It was held in Yoast v. Willis, 9 Ind. 548, that a creditor who resided out of the State for six months prior to the-
But it is further contended by counsel for appellants, that they are not liable at common law for the debts of their ancestor, and that the only statutory provisions making heirs, devisees, and distributees liable in such cases, after the settlement of the estate of the decedent, are those embraced by sections 178 to 187 of the above recited act, and that those sections do not apply to the case in judgment, because the relator was not a creditor of the estate of their ancestor at the time of such final settlement, for the reason that no liability existed against Tucker at the time of his death, or against his estate at the time of the final settlement of his estate, the default of Alexander having occurred subsequent to both of such events.
The question as to whether the appellants are liable at common law does not arise in this case, arid we decide nothing in reference thereto.
It was held by this court in Freeman v. The State, 18 Ind. 484, and Hartman v. Lee, 30 Ind. 281, that the above sections were the only statutory provisions creating a liability against heirs, devisees, and distributees for the debts of the ancestor.
This leaves for our examination and decision the question as to whether the relator was, within the meaning of section 178, a creditor of the estate of Tucker.
In Parsons v. Parsons, 5 Cow. 476, the court say: “ The first question is, was the plaintiff a creditor of the deceased ?
“By the first section of the act (1 R. L. 316), every creditor, whether by simple contract or specialty, may maintain iis action against the heirs at law of any debtor.
In Hall v. Martin, 46 N. H. 337, the court say: “ Again, it is very clearly the policy of our statutes to give to all a reasonable opportunity to prove their claims, and to share in the distribution of the assets; and with that view the assets are all placed in the hands of the executor or administrator, and opportunity given during a limited time to make proofs of claims and receive payment; and thereupon the assets remaining are distributed among the heirs and devisees, and others entitled to them; saving to such creditors as could not prove their demands during the time limited, for the reason that they were wholly uncertain and contingent, their remedies against the heirs and devisees. Such are the general features and policy of our laws upon this sub
“ The cases are numerous where it would be practically impossible to make proof of claims while estates were in the course of administration. Among these are covenants of ■warranty of title to land where the breach had arisen long .after the covenantee had himself conveyed with warranty, contracts of indemnity where the breach and the damages are both wholly uncertain, official bonds of sheriffs and their deputies involving complicated questions of suretyship and otherwise, individual liabilities of corporators involving great -difficulties in adjusting the claims against each, and a variety of other cases of a similar nature equally meritorious with those claims which were in a situation to be proved while the estates were in the course of administration ; and it would clearly be not only unjust, but contrary to the policy both of the common law and our own statutes, that their claims should be unpaid while there were sufficient means left by -the debtor to discharge them.
“ If it were to be conceded that the legislature possessed the constitutional right to bar claims that could not bé presented and proved during the time limited, it would nevertheless be so repugnant to all notions of justice as to forbid such a construction unless the intention was very clearly ■expressed. If the demands had not accrued until the expiration of the limited time, a law which should cut off the remedy would in its effect be the same as the destruction -of the right, and such an intention is not to be presumed.”
In our opinion, the relator was a creditor of the estate of Tucker, within the meaning of the above section.
We think the court committed no error in overruling the -demurrer to the complaint, or in sustaining it to the second, third, and fourth paragraphs of the answer.
The judgment is affirmed, with costs.