80 Ind. App. 134 | Ind. Ct. App. | 1923
Action by appellee, as administrator, to recover from appellant funds of the estate of Jonathan Hess, deceased, deposited by him in his lifetime with appellant and charged to have been paid out by the bank on the checks of L. A. Hess, purporting to act at the time as the administrator of the estate but without authority so to do.
The facts involved, as they appear in the special findings, are substantially as follows: Jonathan Hess died October 4, 1916, at the time a resident of Williams-port, Warren county, Indiana. On February 3, 1911, and while a resident of the State of Illinois he executed his last will and testament and on December 6, 1911, while still such resident of Illinois executed a codicil of such will, which will and codicil were probated in the Warren Circuit Court on September 21, 1918. By the terms of such will, after providing for the payment of his debts and liabilities, he devised certain real estate in Vermillion county, Illinois to his wife, Mary C. Hess, during the term of her natural life, also his household effects and goods and chattels and all personal property,
When the testator died, he had on general deposit in appellant bank, $506.39, and held a certificate of deposit
Appellant’s petition for stay of proceedings is quite long, and nothing is gained in more than briefly stating it. After stating the facts, substantially as in the findings, as to the transfer of the testator’s funds from his account to the account of his son, who was an intermeddler, the petition recites that such son thereafter checked out $3,439.36 which was distributed to himself and his brothers and sisters as legatees, which sums were not to be paid to them until the widow’s death, and other items until there was left in bank but $790.18, which was paid to appellee. It then mentions the house and' lot in Williamsport, which under the terms of the will was not to be sold until after the death of the widow. It then mentions the legacy of $5,000 to the widow, which, under the terms of the will, was first to be paid out of the assets, after the payment of the debts and expenses of administration, and which legacy has not been paid. It asks for a stay of proceed
Appellant next contends that the court erred in its conclusion of law stated upon the special findings of fact.- It appears by these findings that the bank was chargeable with funds received which belonged to the estate of Jonathan Hess, the sum of $5,968.17, As this charge is not controverted we do not need to set out the'
(10) Finding Cash paid appellee as administrator ............................ $790.18
(11) Finding “ “ funeral expenses and taxes............................. 428.10
(12&15) Finding Cash paid widow on legacy. 848.41
(16) Finding Cash paid debts of deceased.. . 666.73
Total.........................$2,733.42
Appellee contends that finding No. 16 as stated by the court is only a conclusion of law and that as such it should be ignored. This finding is as follows: FINDING No. 16—The court further finds that the sum of $666.73 was paid to various parties by said L. A. Hess while acting as such pretended administrator, which sums were proper charges against the estate of Jonathan Hess, deceased, but not chargeable as against the bequests to the widow Mary Hess.
The line of demarcation between a finding of an ultimate fact and a conclusion of law is not always easy to determine. In the case of State, ex rel., v. Williams (1906), 39 Ind. App. 376, 77 N. E. 1137, the action was against appellee for the recovery of certain fees alleged to have been by him collected and not paid over to the' county. There was a special finding of facts and conclusions of law. Under finding No. 7 it was found that the sum of $2,965.29 "was illegal and excessive fees collected and taxed in violation of law and in excess of fees taxable and chargeable by law.” It was the contention of appellant that this statement was a mere conclusion of law, but this court held with the trial court that it did not so regard the finding.
In Minnich v. Darling (1894), 8 Ind. App. 539, 33 N. E. 173, it was held that a conclusion that one by his acts, as set forth in such finding, ratified the acts of a
In Ybarra v. Sylvany (1893), 3 Cal. Unrep. 749, 31 Pac. 1114, the action was to quiet title, and it was held that a finding that the plaintiff was the owner in fee and entitled to the possession of certain real estate, was a finding of an ultimate fact and not a conclusion of law.
In Prescott v. Leonard (1883), 32 Kans. 142, 4 Pac. 172, the court held that a finding that “at the time this suit was commenced the plaintiff was the legal owner of said note, and with the consent of the bank had the right to sue for and recover the amount thereof; and that there is now due from the defendant to the plaintiff thereon the sum of $232.60” was not merely a conclusion of law.
In Snyder v. Emerson, Auditor (1899), 19 Utah 319, 57 Pac. 300, it was held- that a finding'that one was “duly” appointed to an office was not a conclusion of law.
In Weidenmueller v. Stearns, etc., Co. (1900), 128 Cal. 623, 61 Pac. 374, the action was to restrain defendant from changing the level of an irrigation canal from which the plaintiff claimed a prescriptive right to take water from the existing level, and it was held that a finding that the plaintiff had no prescriptive or other right to receive water from said canal at any other level than the bottom of the canal, was a finding of fact and not a conclusion of law.
In Herrick v. Boquillas Cattle Co. (1905), 200 U. S. 96, 26 Sup. Ct. 192, 50 L. Ed. 388, it was held that a finding that plaintiff and its predecessors since a certain date had been, and plaintiff still was, the owner and entitled to possession of premises was a statement of an ultimate fact and not a mere conclusion of law.
We are not unaware that there are authorities to the contrary, but in the light of the foregoing we think we are justified, for the purposes of this appeal, in hold
But by finding No. Í7 the court has found that there was due appellee from appellant $3,662.86, with interest, and its conclusion of law is that appellee is entitled to recover from appellant said sum of $3,662.86 with interest. The difference between this amount and the amount actually due after deducting the sum of the specific items of indebtedness found is $428.10 and as it seems to us it is clear that the court has disallowed the $428.10 found in finding No. 11 which as appears by such finding, was paid out for funeral expenses and taxes. This was a proper application of the assets of the estate of the deceased through the medium of checks issued by the administrator de son tort, who was a son of the deceased, and an heir or legatee, which checks were honored by the bank, and the bank sued as it was, for the misappropriation of the funds of the estate should have been given a credit for'the amount so applied to the discharge of the legitimate debts. Reagan v. Long’s Admx. (1863), 21 Ind. 264; Brown’s Admr. v. Sullivan (1864), 22 Ind. 359, 85 Am. Dec. 421; Pease v. Christman (1902), 158 Ind. 642, 64 N. E. 90.
As there is some uncertainty as to whether appellant has received a proper credit for the said sum of $428.10, it is the opinion of this court that the ends of justice will be best attained by granting a new trial. The judgment is, therefore, reversed with instruction to the trial court to grant a new trial.
Petition for Modification of Mandate.
Appellee has filed his petition to modify the court’s mandate reversing the judgment in this cause, and offers therein to remit from his judgment
The judgment is affirmed upon condition that appellee cause to be filed in this court on or before June 14, 1923, the certificate of the clerk of the Tippecanoe Superior Court that appellee has filed his remittitur of $428.10 of the judgment as of the date thereof. Otherwise the judgment is reversed with instructions to grant a new trial.
Final Mandate.
June 7, 1923, appellee filed certificate of clerk of Tippecanoe Superior Court, showing remittitur of $428.10 of the judgment, together with the interest on said sum from March 3, 1920, to April 22, 1922, in compliance with the mandate of this court. The judgment is therefore finally affirmed in accordance with the judgment heretofore entered herein.